                        NOT FOR PUBLICATION WITHOUT THE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-2111-15T2

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

MICHAEL M. WINTERS,
a/k/a KING ALLAH, KING ALLAH,
KINGNAZIM ALLAH, NAZIM A. KING,
WINTERS M. MICHAEL, DAVID SMITH,
MIKE WINTERS, DARNELL JON, and
MICHAEL WINTERSMARVIN,

          Defendant-Appellant.
___________________________________________

              Argued May 9, 2017 – Decided August 3, 2017

              Before Judges Messano and Grall.

              On appeal from the Superior Court of New
              Jersey, Law Division, Camden County,
              Indictment No. 13-09-2933.

              John Douard, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender,
              attorney; Mr. Douard, of counsel and on the
              brief).

              Kevin J. Hein, Assistant Prosecutor, argued
              the cause for respondent (Mary Eva
              Colalillo, Camden County Prosecutor,
              attorney; Linda A. Shashoua, of counsel and
              on the briefs).
          Appellant filed a pro se supplemental brief.

PER CURIAM

    The grand jurors for Camden County charged defendants

Michael M. Winters and Matilda Marshall with committing five

crimes against one victim, Ms. Colon.   Defendant was tried a

year after Marshall was sentenced, and the State moved to

dismiss the fifth count of the indictment, charging receiving

stolen property, N.J.S.A. 2C:20-7(a), prior to trial.    The jury

found defendant guilty of first-degree kidnapping and conspiring

to commit that crime, N.J.S.A. 2C:13-1(b)(1), N.J.S.A. 2C:5-2,

and of robbery and conspiring to commit that crime, N.J.S.A.

2C:15-1(a)(1)-(2), N.J.S.A. 2C:5-2.

    At sentencing, the court granted the State's motion to

dismiss the fifth count and the State's motion to have defendant

sentenced as a persistent offender pursuant to N.J.S.A. 2C:44-

3(a).   The court merged defendant's conspiracy convictions with

his convictions for kidnapping and robbery and imposed an

extended term sentence for first-degree kidnapping, forty-five

years' imprisonment, and a concurrent ten years' imprisonment

for second-degree robbery.   Both sentences are subject to terms

of parole ineligibility and supervision required by N.J.S.A.

2C:43-7.2.   The court also imposed the appropriate monetary

assessments and penalties, N.J.S.A. 2C:43-3.1 to -3.3.

                                2                           A-2111-15T2
On appeal, defendant's counsel raises the following points:

    POINT I

    EVEN WHEN VIEWED IN THE LIGHT MOST FAVORABLE
    TO THE STATE, THE EVIDENCE DID NOT ESTABLISH
    BEYOND A REASONABLE DOUBT THAT MR. WINTERS
    FAILED TO RELEASE COLON UNHARMED IN A SAFE
    PLACE, AND HIS MOTION FOR JUDGMENT OF
    ACQUITTAL OF FIRST-DEGREE KIDNAPPING SHOULD
    HAVE BEEN GRANTED. U.S. CONST., AMEND. XIV;
    N.J. CONST. (1947), ART. I, ¶ 10.

    POINT II

    BECAUSE THE JUDGE FAILED TO CONDUCT A "PROBING
    INQUIRY" OF THE JURY IN LIGHT OF THE
    PROSECUTOR'S   ACKNOWLEDGEMENT   THAT,   WHILE
    OUTSIDE THE COURTROOM THE MORNING OF THE
    TRIAL, A PUBLIC DEFENDER NOT INVOLVED IN THIS
    TRIAL MADE PREJUDICIAL COMMENTS WITHIN THE
    HEARING OF A JUROR, MR. WINTERS WAS DENIED HIS
    CONSTITUTIONAL RIGHTS TO A FAIR TRIAL. (NOT
    RAISED BELOW)

    POINT III

    THE AGGREGATE FORTY-FIVE-YEAR SENTENCE WITH
    EIGHTY-FIVE PERCENT PAROLE INELIGIBILITY IS
    MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

In his pro se supplemental brief, defendant argues:

    POINT IV

    THE STATE ERRED IN ALLOWING STATE WITNESS
    MARCIA   COLON   TO   TESTIFY    FALSELY   AND
    INCONSISTENTLY AGAINST THE DEFENDANT DURING
    DEFENDANT'S TRIAL, IN WHICH HAD PREJUDICED THE
    JURY TO RENDER A GUILTY VERDICT VIOLATING MR.
    WINTERS 6TH AMENDMENT RIGHT TO A FAIR TRIAL.




                          3                           A-2111-15T2
            POINT V

            THE COURTS ERRED IN PROHIBITING DEFENDANT'S
            ATTORNEY . . . THE OPPORTUNITY TO QUESTION THE
            DETECTIVES DAVID SEYBERT AND DETECTIVE RANDY
            SMITH   REGARDING   MS.  COLON'S   FIRST   TWO
            STATEMENTS AND THE INCONSISTENCY OF THESE TWO
            STATEMENTS FOR THEY HAD NOT BELIEVED HER.

                                 I.

    Because the question of possible taint of the jury

empaneled arose prior to trial, we address that claim before

discussing the evidence supporting defendant's conviction and

sentence.

    The jurors were selected and sworn on June 9, and the court

directed them to report for trial at 10:00 a.m. the next day.

The next morning, before trial commenced and in the presence of

defense counsel and on the record, the prosecutor told the court

that at about 9:00 a.m. an attorney not involved in this case

made remarks about defense counsel to the prosecutor in the

hallway near the courtroom and the elevator.    The attorney who

made the comments was present when the prosecutor reported the

incident.

    The prosecutor was concerned that a member of this jury

might have overheard the conversation, because one woman was

possibly close enough.    He described the woman's distinctive




                                  4                          A-2111-15T2
outfit and said he was not certain whether she was serving in

this case or another being tried on the same floor that day.

    The court knew another judge was conducting a jury trial

and had directed those jurors to report at 9:00 a.m.     The

prosecutor, accompanied by a court aide, went to the other

courtroom.     A civil trial was underway, and the woman the

prosecutor had seen was in the jury box.

    On receipt of that information, the court concluded there

was no need to take additional action.     The attorneys agreed and

acknowledged the court should do nothing more than share the

information with the judge conducting the other trial.     Thus,

the trial court, defense counsel and the prosecutor who

conscientiously reported the potential problem, were all

satisfied there was no reason to suspect a member of this jury

had been exposed to comments having the capacity to influence

the verdict.    State v. Loftin, 191 N.J. 172, 179-60 (2007).

    Defendant now contends the court's response was

insufficient to protect his right to a trial before an impartial

jury untainted by extraneous information.     We see absolutely no

reason to even suspect a juror serving in this case was tainted.

Defendant's objection, which is contrary to the position

defendant took in the trial court and raised for the first time



                                  5                            A-2111-15T2
on appeal, has insufficient merit to warrant any additional

discussion.    R. 2:11-3(e)(2).

                                  II.

       The evidence presented at trial can be summarized as

follows.    Ms. Colon planned to go to work on November 15, 2012.

She left her house in Camden wearing her uniform, a jacket and

coat, intending to take the 6:00 a.m. bus to a hotel in Cherry

Hill where she worked as a housekeeper.     It was still dark and

cold when she arrived at the bus stop, and the corner store

behind the stop was still closed and gated.     Defendant and

Marshall, whom Colon did not know, were nearby.     No one else was

around.

       Colon heard defendant say, "there she is."   He then stood

by and watched, as Marshall approached Colon and asked, "Where's

my money."     Marshall grabbed Colon by the neck, pushed her

against the store's gate and put her hand inside Colon's

clothing while repeating her demand for money.      Failing to find

any, Marshall pushed Colon toward a car and put her in its back

seat.     Marshall then sat in the front seat, and defendant drove

away.     Although neither defendant nor Marshall had uttered a

threat, Colon was afraid they were going to beat her to death.

As defendant drove, Colon cried, and Marshall told her to "shut

up."

                                   6                          A-2111-15T2
      Defendant drove until he reached a secluded railroad bridge

and stopped.   At that point, Marshall moved to the back seat,

ordered Colon to take off her clothes and searched again when

Colon was wearing only underwear.     Marshall recovered nothing

other than a food stamp card, ID, keys and $.50.     Using the

car's rearview mirror, defendant had watched the events

occurring in the backseat.

      After the final search, Marshall returned to the front

seat.   She and defendant told Colon to get dressed, and

defendant drove from the railroad bridge to a gas station that

had a convenience store.     This establishment was not insolated;

there were men standing outside in the parking lot when

defendant parked by the gas pumps.    At that point, Colon had

dressed, and defendant had taken the belongings Marshall seized

and, with the exception of the $.50, returned them to Colon.

After parking, defendant left the car and went into the store.

      When defendant left the car, Marshall re-took Colon's food

stamp card from her and asked Colon for the PIN needed to use

it.   Colon complied, and Marshall left the car, went into the

convenience store and made several attempts to access the ATM.

      Just seconds after Marshall left the car, Colon, thinking

it was her chance to get away, got out of the car.     Colon left

wearing her short-sleeved uniform, carrying her jacket and left

                                  7                         A-2111-15T2
her coat behind.     According to Colon, the men asked where she

was going, but, thinking they would not help her, she walked

away.     Although she walked at first, she started to run and kept

running until a woman she did know took her in and called the

police.

    At the station, defendant, who returned to the car about

thirty seconds after Colon left it, looked at the car, went back

to the store and motioned to Marshall, who was still at the ATM.

They left the store, got into the car and sped away.

    The gas station's cameras had recorded the events at the

pumps and in the convenience store.    The recording, which showed

the time of the events as they were occurring, was introduced

into evidence at trial and shown to the jury.

    The police, using the video evidence, created a "Wanted

Poster" bearing images of the codefendants and the car.      The

next day an officer spotted the parked car and defendant and

Marshall, who were sitting in it.     They were arrested, and Colon

subsequently selected their photos from separate arrays.

    The officers involved in the investigation that followed

testified at trial.    Defense counsel cross-examined them about

warnings they gave Colon to secure her testimony, such as

removal of her children from her care and prosecution if she

lied or changed her account of the incident.     The court

                                  8                          A-2111-15T2
precluded the defense from eliciting the officers' opinions on

Colon's veracity.   But, in addition to cross-examination about

the officers' statements, the court permitted cross-examination

probing differences between Colon's trial testimony and pre-

trial statements.

                               III.

    The most significant issue defendant raises on appeal is

the challenge to the court's denial of his motion for a directed

verdict on the first-degree kidnapping.   In reviewing a directed

verdict, this court applies the same standard as the trial

court.   Courts view the evidence in the light most favorable to

the State, give the State the benefit of all reasonable

inferences and determine whether "a reasonable jury could find

guilt of the charge beyond a reasonable doubt."     State v. Reyes,

50 N.J. 454, 458-59 (1967); see Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1973).

    Defendant's motion for a directed verdict was general and

not tied to an element of any crime at issue.     On appeal,

defendant argues the State failed to present adequate evidence

to establish the element that distinguishes kidnapping in the

first and second degree, that is, the defendant did not

"release[] the victim unharmed and in a safe place."    N.J.S.A.

2C:13-1(c).

                                9                              A-2111-15T2
    In order to prove this element in a case involving "a

kidnapper who has released the victim prior to his or her

apprehension, the State must prove beyond a reasonable doubt

that the victim had been harmed or had not been released in a

safe place."   State v. Sherman, 367 N.J. Super. 324, 330 (App.

Div.) (emphasis added), certif. denied, 180 N.J. 356 (2004).

Thus, the State's evidence need not be adequate to permit a

reasonable jury to find that a released victim was harmed and

released in an unsafe place.    Ibid.   Proof of either suffices.

    More important, under Sherman, the question of "harm" to

the victim and the "safe[ty]" of the place where the victim

becomes free are in issue only when a defendant "has released"

the victim.    Ibid.   Defendant acknowledges that proposition by

arguing "Colon was effectively released . . . in a safe place."

(emphasis added).

    In this case, the State's evidence, considered with the

benefit of all favorable inferences, was adequate to permit a

reasonable jury to find defendant had not "released" Colon

because she escaped.    That is, the evidence was adequate to

establish, beyond a reasonable doubt, that defendant did not

effectively "abandon[] any attempt to continue to confine her."

State v. Federico, 103 N.J. 169, 172 (1986) (citing State v.

Federico, 198 N.J. Super. 120, 126 (App. Div. 1984)).

                                 10                         A-2111-15T2
Resolution of that factual dispute – abandonment of control

versus escape – was for the jurors.     Federico, supra, 198 N.J.

Super. at 125-26.

    Considered collectively, Colon's testimony, if believed,

and the video provided adequate to prove Colon escaped before

defendant abandoned control.     Working together, the codefendants

took Colon from the bus stop, put her in a car, drove her to an

isolated place, compelled her to remove her clothes and took her

belongings.    Thereafter, they drove her to a gas station and

maintained that control.     Marshall stayed with Colon when

defendant went into the gas station's store, and Colon left the

car only seconds after Marshall left and just thirty seconds

before defendant returned to the car.

    A jury could determine that Colon's leaving the car without

her coat and walking away before starting to run was not

behavior one would expect from a person free to come and go at

will.   And the jury could conclude it was consistent with the

behavior of a person attempting to sneak away and succeeding.

The video gave the jury the opportunity to assess Colon's

behavior.     More important, the video gave the jury the

opportunity to determine whether defendant's demeanor and

behavior upon discovering Colon had left was consistent with the



                                 11                            A-2111-15T2
surprise and alarm of a captor who had lost control or with the

indifference of a captor who had abandoned control.

    Viewed in the light most favorable to the State, the

evidence permitted a finding of guilt on first-degree kidnapping

based on defendant's failure to release the victim.

    We have addressed defendant's second point, possible

tainting of the jury, in Part I of this opinion.    No additional

comment is warranted.

    Turning to Points IV and V raised in defendant's pro se

brief, we discern no error.   The court properly barred questions

eliciting the officers' opinions on Colon's credibility, because

credibility is exclusively within the province of the jurors and

a lay witness's opinion on that topic is inadmissible.     State v.

Frisby, 174 N.J. 583, 593-94 (2002); accord State v. McLean, 205

N.J. 438, 453 (2011) (emphasizing the cases cited therein).

    Defendant's claim concerning the court's allowing false

testimony has no merit.   There is no evidence suggesting the

prosecutor or the officers knew Colon's testimony and statements

were false, as opposed to inconsistent, and defense counsel's

vigorous cross-examination highlighted the inconsistencies.

Moreover, the court directed the jurors to consider the impact

of the officers' arguably coercive statements.     The court

instructed the jurors to consider "statements of other witnesses

                               12                              A-2111-15T2
or acts of the witnesses and others, disclosing motives that the

witness may have had to testify as she did."        The arguments

presented in Points IV and V have insufficient merit to warrant

additional discussion.       R. 2:11-3(e)(2).

    There is no reason to disturb defendant's sentence.        He

urges us to conclude the forty-five year extended term sentence

for first-degree kidnapping is manifestly excessive.

    Appellate review of a sentence is "governed by an abuse of

discretion standard."        State v. Blackmon, 202 N.J. 283, 297

(2010).    This court may not substitute its judgment for that of

the trial court.     Ibid.    The reviewing court considers:   (1)

"whether the correct sentencing guidelines . . . have been

followed;" (2) "whether there is substantial evidence in the

record to support the findings of fact upon which the sentencing

court based the application of those guidelines;" and (3)

"whether in applying those guidelines to the relevant facts the

trial court clearly erred by reaching a conclusion that could

not have reasonably been made upon a weighing of the relevant

factors."     State v. Roth, 95 N.J. 334, 365-66 (1984).

    Defendant relies on State v. Dunbar, 108 N.J. 80 (1987),

which set forth a "process to discretionary enhanced-term

sentencing" of persistent offenders, pursuant to N.J.S.A. 2C:44-

3(a).     But before defendant was sentenced, the Court revised the

                                    13                         A-2111-15T2
Dunbar-process to comply with Apprendi v. New Jersey, 530 U.S.

466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403

(2004).   State v. Pierce, 188 N.J. 155, 165-69 (2006).      Although

defendant relies on Dunbar, Pierce controls.

    Under Pierce, the court first determines whether the

"defendant's criminal record of convictions" makes him eligible.

Id. at 168.   If the defendant is eligible, the court imposes a

sentence within a range that begins with the minimum ordinary

term and ends with the maximum extended term.    Ibid.   To select

the appropriate sentence within the range, the court must assess

the aggravating and mitigating factors and, in that context,

consider the need for "protection of the public."    Ibid.

    Under Dunbar, courts were directed to consider whether

protection of the public necessitated an extended term sentence

based on persistent offending when determining a defendant's

eligibility for an extended term.    108 N.J. at 164-65.     In

Pierce, the Court stressed that "a finding of 'need to protect

the public' is not a precondition to a defendant's eligibility

for sentencing up to the top of the discretionary extended-term

range."   188 N.J. at 170.   Necessity is a factor the Court "may

consider" with the aggravating and mitigating factors.       Ibid.



                                14                            A-2111-15T2
    In this case, the trial court complied with the first and

second steps of Pierce.   The court identified the minimum

sentence for first-degree kidnapping, which is fifteen years,

N.J.S.A. 2C:13-1, and the maximum extended-term sentence for

first-degree kidnapping, which is "life imprisonment," N.J.S.A.

2C:43.7(a)(1).   The trial court then identified the applicable

aggravating and mitigating factors and the facts he relied upon

in finding aggravating factors specified in N.J.S.A. 2C:44-

1(a)(3), (6) and (9), and mitigating factors specified in

N.J.S.A. 2C:44-1(b)(2), (4) and (8).

    The court did not find the mitigating factor that applies

when "[t]he defendant's conduct neither caused nor threatened

serious harm," N.J.S.A. 2C:44-1(b)(1), and explained that

"[a]nytime a person is violently removed and . . . kept away

from their normal activities by being forcibly moved from part

to part, there's a risk of serious crime."   That determination

was not an impermissible double-counting of an element to impose

a sentence at the high-end of the range, as defendant argues.

See State v. Pineda, 119 N.J. 621, 627 (1990) (discussing

double-counting).   Here, the court determined this mitigation

based on risk of serious harm did not favor a sentence at the

lower end of the permissible range.



                               15                            A-2111-15T2
    Notably, the court did not find the first aggravating

factor, which concerns the nature and circumstances of the

offense and the defendant's role in its commission, N.J.S.A.

2C:44-3(a)(1).   Instead, the court found mitigating factor (2),

which applies when the defendant before the court "did not

contemplate that his conduct would cause of threaten serious

harm."   N.J.S.A. 2C:44-1(b)(1).

    The trial court's consideration of the aggravating and

mitigating factor cannot be viewed as anything other than a

thorough and thoughtful exercise of sentencing discretion in

conformity with the law.   It is not an abuse of that discretion.

    Defendant's argument focuses on a comment the court made

during defendant's allocution on defendant's role in removing

Colon from the bus stop to the backseat of the car.   The judge

did not rely on that description in explaining the factual basis

for the sentence.   Accordingly, even if we found the court's

recollection of the testimony on the point inaccurate, we could

not conclude that it had some undisclosed impact on the court's

carefully articulated sentencing determination.

    Relying on Dunbar, defendant argues that the court, having

determined to sentence defendant as a persistent offender, erred

in considering his criminal history in selecting the duration of

his extended-term sentence.   But, as Pierce explains, the

                               16                            A-2111-15T2
"'necessity to protect the public' . . . involves an evaluation

of the 'entire person of the defendant before the sentencing

court'" and is properly considered in selecting a sentence

within the broad extended-term range, not as it was considered

under Dunbar in deciding the defendant's eligibility for an

extended term sentence.   Pierce, 188 N.J. at 167 (quoting

Dunbar, supra, 108 N.J. at 91).

    Defendant also contends the court double-counted the

convictions that qualifies him for this discretionary extended

term.   Not so.   In finding defendant eligible for an extended

term, the court relied on an August 17, 1995 conviction for

possession of CDS and on a January 7, 2011 conviction for

terroristic threats.   In finding aggravating factor (6), the

court considered defendant's third degree crimes for drugs

(defendant had at least three convictions for third-degree CDS

offenses after his 1995 conviction), and his convictions for

possession of a handgun, resisting arrest, burglary, shoplifting

and eluding.   Although the court mentioned "terroristic

threats," the court immediately said, "I'm sorry, I'm not

considering the terroristic threat[.]"

    Defendant's sentence was imposed in conformity with

statutory guidelines as interpreted by the Supreme Court and is

supported by the evidence adduced at trial and defendant's

                                17                           A-2111-15T2
strikingly lengthy criminal record.   His lengthy sentence is

neither arbitrary nor shocking to the judicial conscience.

    Affirmed.




                              18                          A-2111-15T2
