                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-6123-11T3

STATE OF NEW JERSEY,
                                       APPROVED FOR PUBLICATION

     Plaintiff-Respondent,                January 15, 2015

v.                                       APPELLATE DIVISION

JEROME L. FAUCETTE, a/k/a
LEROY DANIEL THOMAS,

     Defendant-Appellant.
_______________________________

         Submitted September 15, 2014 - Decided January 15, 2015

         Before    Judges    Lihotz,     Espinosa      and
         Rothstadt.

         On appeal from the Superior Court of New
         Jersey, Law Division, Burlington County,
         Indictment No. 08-08-0865.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Frank M. Gennaro, Designated
         Counsel, on the brief).

         John J. Hoffman, Acting Attorney General,
         attorney for respondent (Jane C. Schuster,
         Deputy Attorney General, of counsel and on
         the brief).

         Appellant filed a pro se supplemental brief.

     The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

     In reviewing the Law Division's order denying defendant's

motion to suppress his custodial statement, we consider not only
whether     defendant's      statement    was     voluntarily           and    knowingly

made, but also whether the fourteen-day break-in-custody period

following    a   defendant's     invocation       of       the   right    to    counsel,

announced in Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213,

175 L. Ed. 2d 1045 (2010), and applied by our Supreme Court in

State v. Wessells, 209 N.J. 395 (2012), must also be applied

when    a   defendant     invokes   the       right    to    remain      silent.        In

Shatzer, the United States Supreme Court specifically recognized

an enhanced protective period must follow a break in custody

caused by a suspect's invocation of the right to counsel.                               We

conclude     such    an   extensive      period       of    protection         need   not

accompany a break in custody caused by a defendant's request to

cease the interrogation.

       Defendant Jerome L. Faucette was charged under Indictment

No.    08-08-0865    with    first-degree       offenses         of   felony     murder,

N.J.S.A.     2C:11-3(a)(3)      (count        one);    and       robbery,       N.J.S.A.

2C:15-1     (count   two).       The     charges       stem      from    an     incident

occurring on April 14, 2008, when defendant acted as the driver

for co-defendant Terrance S. Clemons, who robbed and shot a gas

station attendant.          Following trial, a jury acquitted defendant

of felony murder, but found him guilty of first-degree robbery.

Defendant was sentenced to thirteen years in prison, subject to




                                          2                                     A-6123-11T3
the 85% parole ineligibility period required by the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.

         Defendant appeals from his conviction and sentence arguing:

             POINT ONE
             DEFENDANT'S MAY 15, 2008 STATEMENT WAS NOT
             THE PRODUCT OF A VOLUNTARY, KNOWING, AND
             INTELLIGENT WAIVER OF HIS RIGHT TO REMAIN
             SILENT AND, THEREFORE, SHOULD HAVE BEEN
             SUPPRESSED BY THE TRIAL COURT.

             A.   Waiver of Miranda Rights.

             B.   Defendant Invoked his Right to Remain
                  Silent.

             C.   Fruit of the Poisonous Tree.

             POINT TWO
             THE PUBLICATION TO THE JURY OF GRAPHIC
             AUTOPSY PHOTOGRAPHS, WHICH WERE NOT ADMITTED
             INTO   EVIDENCE,  WAS  ERROR   WHICH  UNDULY
             PREJUDICED DEFENDANT.

             POINT THREE
             THE    TRIAL    COURT    WRONGFULLY         DENIED
             DEFENDANT'S MOTION FOR A NEW TRIAL.

             POINT FOUR
             DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.

In   a    separately   filed   supplemental   brief,   defendant   presents

these issues:

             ISSUE I
             APPELLANT'S CONVICTION FOR FIRST DEGREE
             ROBBERY ON BASIS OF ACCOMPLICE LIABILITY
             THEORY REQUIRES REVERSAL FOR INSUFFICIENCY
             OF EVIDENCE.

             ISSUE II
             THE TRIAL COURT'S JURY INSTRUCTIONS ON
             ACCOMPLICE LIABLITY FOR FIRST DEGREE ROBBERY



                                      3                            A-6123-11T3
          WERE INSUFFICIENT, DEFECTIVE AND ERRONEOUS
          AND THE ERROR WAS SO FUNDAMENTAL AS TO
          CONSTITUTE PLAIN ERROR (PLAIN ERROR).

          ISSUE III
          DEFENDANT'S MAY 15, 2008 STATEMENT WAS THE
          PRODUCT OF PSYCHOLOGICAL COERCION AND WAS
          NOT THE PRODUCT OF A VOLUNTARY, KNOWING AND
          INTELLIGENT WAIVER OF HIS RIGHT TO REMAIN
          SILENT   AND  THEREFORE   SHOULD HAVE  BEEN
          SUPPRESSED BY THE TRIAL COURT.

    Following     our    review   of    these    issues,   in    light    of    the

record and the applicable law, we affirm.

                                        I.

    In   Point    One    and    Issue    III,    defendant      challenges      the

voluntariness    of    his   custodial       statements.      These   facts     are

taken from the record of the three-day Miranda1 hearing, during

which Detective Stephen Craig was the sole witness and the State

admitted DVD recordings of defendant's custodial interviews.

    On   May     14,    2008,   Detective       Craig   and     another    police

detective met defendant at his place of employment around 7:00

p.m. and asked if he would come with them for questioning.                     Once

at the police station, the detectives advised defendant of his

Miranda rights.

    At approximately 8:00 p.m., defendant stated he "d[id not]

want to be [t]here" and "[he] want[ed] to be at work working, go


1
     Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).



                                        4                                 A-6123-11T3
home and get in [his] bed and then wake up and do the whole same

thing again."         Thereafter, he asserted, "I ain't going to talk

[to] you I just want to leave, my God," and "I'm done talking

yo."     Despite these protests, which were repeated, Detective

Craig continued the interrogation, which lasted for seven hours.

Police    did    not     charge    defendant         and   drove       him    home     at

approximately 2:30 a.m.

       That   same     day,   police   returned       to   defendant's         home   at

approximately 4:30 p.m. and asked him to accompany them to the

prosecutor's      office.         Police       had   requested     a    warrant       for

defendant's arrest, which had not yet been issued.                            Defendant

agreed to go with the officers and his mother followed in her

car.     Defendant's mother stayed in the lobby, while defendant

was taken into an interview room.

       Detective Craig advised defendant of his Miranda rights,

"read[ing]      them    aloud   from   a       standard    Miranda     card,"     which

defendant signed and dated.2               Upon receipt of the warrant, he

also informed defendant he was under arrest for "murder and

. . . related offenses" and provided a copy of the warrant

reflecting      the     charges.       The       detectives      also        confronted

defendant     with     information     police        had   gathered      from     other

witnesses since defendant's earlier interview.

2
       Defendant did not execute a waiver of his Miranda rights.



                                           5                                   A-6123-11T3
       Specifically,         Detective     Craig      learned         Detective      Brian

Weisbrot,    the    lead      investigator       on   the    case,     questioned       Ms.

Spencer, defendant's former girlfriend, and Mr. Gaddy,3 defendant's

friend.     Spencer told police defendant admitted he and Clemons

were    involved    in       the    robbery    and    shooting.          Spencer       then

revealed this to Gaddy, who confirmed what she had told him.

       Defendant responded emotionally to this news, screaming,

crying, protesting his innocence, insisting he was telling the

truth and pacing around the room.                 After calming down, and upon

further police interrogation, defendant described his role in

the gas station robbery and killing.                  Defendant admitted he knew

Clemons intended to rob the gas station because he told him

"it's   easy    .   .    .   it's    an   easy    spot      to   go   get."       Despite

initially declining, defendant agreed to "just drive [Clemons]

around."       At 11:00 p.m., he dropped Clemons off at the gas

station, and waited in his vehicle for Clemons to "go[] and do[]

it."    Clemons returned to the car and during the drive back,

told defendant "he shot the guy," meaning the attendant, stating

"[he] shot him in his leg and then he was on the ground and he

. . . just shot him" in the head.                 The victim later died of the

inflicted gunshot wounds.

3
  Mindful that our opinion will be posted on the internet, we
have omitted the full names of witnesses wherever possible to
protect their privacy.



                                           6                                      A-6123-11T3
      Defendant told police, shooting the attendant was not part

of the plan.          He insisted "[he] didn't know [Clemons] had a gun

on him" and told detectives he did not take any of the proceeds

of the robbery.          When asked if Clemons wore a mask, defendant

responded Clemons had a "bulgy pocket," which he thought "could

have had a mask in there . . . ."                    Defendant also recounted

driving Clemons to his girlfriend's house after the shooting,

and   encountering        Spencer,       who   he   told    about      the    robbery,

including how "[Clemons] shot somebody."

      Throughout the interview, defendant did not appear to be

under the influence of alcohol or controlled substances, nor did

he display "visual signs of injury or any complaint of any type

of injury that would have precluded [the police] from speaking

with him."        Detective Craig noted defendant, "appeared to be

well rested," "cognizant of the communications [the detectives]

were having with him" and to understand the rights as explained

to him.         According to Detective Craig, defendant declined to

invoke his right to remain silent and agreed to answer questions

without an attorney present.

      In   a    written      statement    accompanying      his   order,      the   Law

Division judge credited Detective Craig's testimony.                         The judge

found, in the first meeting with police, defendant expressed a

desire     to   end    the   interview     after    one    hour   of    questioning.




                                           7                                  A-6123-11T3
Thereafter,    the    interview   "bec[ame]     an    interrogation"      and

"continued in a persistent, relentless fashion" and was "laced

with . . . defendant's continued protestations . . . ."                  Thus,

the   court   found   "[p]atently,       beginning   at   8:03   p.m.,    the

detectives failed to comply with the dictates of Miranda," a

point the State conceded.

      Nevertheless, despite the "flagrant" Miranda violations on

May 14, the "extensive" questioning that night "did not deprive

. . . defendant of the normal use of his faculties, nor did it

constitute psychological manipulation that diminished his free

will," when questioned a second time.                Regarding the second

interview, the trial court made the following factual findings:

               Initially, . . . defendant, often
          screaming or crying, denied any involvement
          or saying anything to Spencer about the gas
          station crimes.    The detectives confronted
          . . . defendant with his inconsistent
          statements or failure to disclose, while
          prying   from  him   gradual  admissions   of
          involvement.   At no time did he make any
          request, even a subtle one, to terminate the
          interrogation or to have a lawyer. Although
          he probably had no more than five hours
          sleep the previous night, he exhibited no
          signs    of   sleep    deprivation,    mental
          incapacity or being physically overwhelmed.

               Mid-way through the interrogation, the
          defendant,    becalmed,    gave     narrative
          statements during an eight-minute segment,
          admitting that he served as the driver for
          Clemons who committed a robbery at the . . .
          gas station, and the later robbery-murder at
          the . . . [g]as station.      Throughout the



                                     8                             A-6123-11T3
               balance of the interrogation . . . defendant
               was calm and cooperative.

       The     judge        reasoned       that      neither           the      length        of    the

interviews         nor       their     proximity               in     time       nullified           the

voluntariness          of    defendant's         statements              made    in     the     second

interview.         The judge found statements in that interview were

voluntarily made, as "[a] review of the recorded interrogations

reveal[ed]        a    defendant      of    normal         intelligence,              free    of    any

indicia      of       influential          alcohol         or       medications,             able    to

understand the questions posed and respond to them."                                     Moreover,

the    judge      determined         defendant's           May      15    statement          did     not

constitute "fruit of the poisonous tree," noting he was again

read   his     Miranda       rights     prior        to    the        second     interview;          the

interviews        were      separated       by    more         than      fourteen       hours;       and

defendant was confronted with additional evidence at the later

interview.            Accordingly,         the    judge         concluded         "[t]he       record

reflect[ed]           compliance       with       Miranda"            during       the        May     15

interview,        as        "defendant       made         no        request       to      terminate

questioning or ask for a lawyer."

       The     December        14,      2011         order          suppressed          defendant's

statements        made      after    8:03     p.m.        on    May      14     until    the       early

morning hours of May 15.                   However, the balance of defendant's

statements to police were deemed admissible, including his May




                                                 9                                            A-6123-11T3
15 disclosure of his role in the crime made after a second

issuance of Miranda warnings.

      The principal issue on appeal is whether, examining the

totality    of    the   circumstances,       defendant's   second       custodial

statement was freely and voluntarily given.                Defendant argues

his admission "was extracted in violation of [his] right to

remain silent" and contends it was the "product of government

coercion[,] which . . . overcame [his] will."                Defendant also

posits the judge erred because the initial questioning, which

the     State    conceded    violated    Miranda's   protections,         "cannot

neatly be separated" from the subsequent interview, rendering

any statements made during this latter interview "fruit of the

poisonous tree."

      "[A] finding of compliance with Miranda and voluntariness

turn[s]    on    factual    and   credibility   determinations      .    .   .   ."

State v. W.B., 205 N.J. 588, 603 n.4 (2011).               In our review, we

determine whether there is "sufficient credible evidence in the

record to sustain the trial judge's findings and conclusions."

Ibid.     If so, our "task is complete and [we] should not disturb

the result . . . ."         State v. Johnson, 42 N.J. 146, 162 (1964).

In our review, we defer to the trial judge's factual findings

that are "'substantially influenced by his [or her] opportunity

to hear and see the witnesses and [develop a] feel of the case,




                                        10                               A-6123-11T3
which a reviewing court cannot enjoy.'"                       State v. Davila, 203

N.J. 97, 109-10 (2010) (quoting Johnson, supra, 42 N.J. at 161)

(internal quotation marks omitted).                  However,

             when the trial court's sole basis for its
             findings and conclusions is its evaluation
             of a videotaped interrogation, there is
             little, if anything, to be gained from
             deference. In that circumstance, . . .
             appellate courts are not confined to a
             review of a transcript nor obliged to defer
             to the trial court's findings, but may
             consider the recording of the event itself.

             [State v. Diaz-Bridges, 208 N.J. 544, 565-66
             (2011) (citing State v. Alston, 204 N.J.
             614, 626 n.2 (2011)).]

    Importantly, if necessary, this court will not "hesitate to

make new fact findings on the record in a situation where the

findings are not exclusively factual but intertwined with legal

conclusions drawn from the Miranda case and its progeny."                          State

v. Godfrey, 131 N.J. Super. 168, 174-75 (App. Div. 1974) (citing

State v. Yough, 49 N.J. 587, 596 (1967)), aff'd, 67 N.J. 80

(1975).       Generally,      if   "a    trial       court's    findings       [are]   so

clearly      mistaken    'that       the       interests       of     justice    demand

intervention     and    correction[,]'           .    .   .    an    appellate     court

properly reviews 'the record as if it were deciding the matter

at inception and make[s] its own findings and conclusions.'"

State   v.   Hreha,     217   N.J.      368,    382    (2014)       (quoting    Johnson,

supra, 42 N.J. at 162).            Further, we are not bound by a trial




                                           11                                   A-6123-11T3
court's resolution of legal issues, which remain subject to our

de novo review.           State v. Shaw, 213 N.J. 398, 411 (2012).

        Defendant's constitutional challenge invokes his right to

remain silent.            "The Fifth Amendment privilege against self-

incrimination,        made        applicable       to        the    states     through      the

Fourteenth Amendment, provides that '[n]o person . . . shall be

compelled      in     any     criminal       case       to     be    a    witness     against

himself.'"        State v. P.Z., 152 N.J. 86, 100 (1997) (quoting U.S.

Const. amend. V).             Under New Jersey law, "the right against

self-incrimination           is    founded    on    a        common-law      and    statutory

.   .   .   basis,"    but    similarly       establishes           "'no     person   can    be

compelled to be a witness against himself.'"                             State v. Reed, 133

N.J. 237, 250 (1993) (citation omitted).                                 Attendant to this

right is the "absolute right to remain silent while under police

interrogation . . . ."             Ibid.

        Because     the     privilege      against       self-incrimination           is    not

self-implementing, the right is safeguarded through the use of

Miranda's "'prophylactic-procedural safeguards . . . .'"                                 State

v. Knight, 183 N.J. 449, 461 (2005) (quoting State v. Burris,

145 N.J. 509, 520 (1996)).                   Without question, "[c]onfessions

obtained . . . during a custodial interrogation are barred from

evidence unless the defendant has been advised of his or her

constitutional rights."             Ibid.     (citing Miranda, supra, 384 U.S.




                                             12                                       A-6123-11T3
at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707).                      Moreover, it

is     the    State    which    bears   the     burden      of    "prov[ing]        the

voluntariness of a confession beyond a reasonable doubt."                       State

v. Galloway, 133 N.J. 631, 654 (1993).

       Our "inquiry begins with whether the suspect invoked his or

her right to remain silent."            Diaz-Bridges, supra, 208 N.J. at

564.     "'If [an] individual indicates in any manner, at any time

prior    to    or   during   questioning,      that   he    [or   she]     wishes   to

remain       silent,   the     interrogation    must       cease.'"        State     v.

Hartley, 103 N.J. 252, 263 (1986) (quoting Miranda, supra, 384

U.S. at 473-74, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723).

"Although a clear assertion of [the] right must of course be

scrupulously        honored,    officers     confronted      with     an   ambiguous

invocation are authorized to make inquiry in order to clarify

the suspect's intent."          Diaz-Bridges, supra, 208 N.J. at 569.

              As it relates to the invocation of the right
              to remain silent, both the words used and
              the suspect's actions or behaviors form part
              of    the    inquiry   into    whether    the
              investigating officer should have reasonably
              believed that the right was being asserted.
              As a result, the court's inquiry necessarily
              demands a fact-sensitive analysis to discern
              from the totality of the circumstances
              whether the officer could have reasonably
              concluded that the right had been invoked.

              [Id. at 565.]




                                        13                                   A-6123-11T3
       When assessing the validity of a defendant's waiver of his

right to remain silent, a court considers the totality of the

circumstances,         including     both       the    characteristics            of    the

defendant and the nature of the interrogation.                          Ibid.     Relevant

factors "include the suspect's age, education and intelligence,

advice concerning constitutional rights, length of detention,

whether the questioning was repeated and prolonged in nature,

and    whether    physical       punishment      and     mental         exhaustion      were

involved."       Galloway, supra, 133 N.J. at 654.

       In this matter, defendant maintains "during the May 15[]

interrogation, he both clearly and equivocally invoked his right

to remain silent, and . . . therefore, the police should have

terminated the interrogation."              For support, he emphasizes that

when     the     second     interview        commenced,            he     expressed      an

unwillingness "to be here."               Defendant presents several reasons

he believes demonstrate his statement was involuntary.                            We have

considered and rejected each of these arguments.

       The important facts influencing our review are repeated.

Defendant      willingly     accompanied         police       to    the    prosecutor's

office    for     further        questioning.            He    rode       with    police,

unrestrained, and was taken to an interview room.                         Defendant was

left   alone     for   a   few   minutes,       then   Detective         Craig    and   his

colleagues      entered    the     room    and    read    defendant         his   rights.




                                           14                                     A-6123-11T3
Defendant initialed the Miranda card, acknowledged it was read

to him and noted he understood the rights, including the right

to remain silent and the right to terminate questioning at any

time.    By then, Detective Craig had obtained the arrest warrant

and told defendant he was charged with armed robbery and murder.

Defendant     initially       could     not       control     his    emotions.             He

repeatedly denied culpability and insisted he had been truthful

and Spencer was lying.          However, as police revealed the evidence

gathered, defendant changed his position and began to relate

those    facts     evincing      his    participation.              Detective         Craig

informed defendant both Clemons and Spencer had implicated him.

He revealed Spencer's statement included the number of times and

locations where the attendant was shot, information not made

public, and only available to Spencer because defendant had told

her.    Detective Craig repeated he had no interest in defendant's

denials, assertions of ignorance or attempts to minimize his

involvement      in    the    incident.          He    said   he    did    not     believe

defendant's claims and gave him "one last chance" to state his

involvement      and    provide       new     information.           At     that      point

defendant confessed.

       Defendant      never    requested         the   questioning        cease.        More

important, he never invoked his right to counsel.                            Rather, he

continued the interview, offering the events as he knew them.




                                            15                                     A-6123-11T3
As the conversation continued, defendant gradually admitted he

drove Clemons and "dropp[ed] him off" at the service station.

Defendant admitted he asked Clemons "what he was going to do,"

and Clemons responded, "I'm about to go get some money."                            He

also told the detectives, Clemons said "he shot the man and he

probably killed him."

       As    the   trial    judge    noted,      defendant,    although    emotional

and, at times crying and screaming because he was arrested and

going       to   jail,     never    exhibited      fatigue,    confusion    or    any

inability to comprehend what was happening.                     He understood his

rights, understood he was charged with first-degree offenses and

clearly understood police spoke to Clemons and Spencer.                      Police

never threatened or coerced defendant; they told defendant they

thought he was lying, believed he was involved and suggested he

look out for himself.              When told he had one last chance to tell

the truth, defendant sat calmly and clearly responded to the

detectives' questions.

       Reviewing     the     DVD     and   Detective     Craig's   testimony,      we

concur with the trial judge that defendant did not invoke his

right to remain silent.                He was not coerced, but ultimately

convinced to confess his role to aid his self-interests.                     He was

calm    and      related    detailed       information    in    response    to    the

detectives'        inquiries.          Considering       the    words     used    and




                                            16                              A-6123-11T3
defendant's behaviors as depicted on the DVD, we find defendant

waived his right to remain silent.              See Diaz-Bridges, supra, 208

N.J.    at   565.      Accordingly,      we     conclude       he   knowingly       and

voluntarily provided his statement of his role in the crimes and

interaction with Clemons on April 14, 2008.

       Addressing defendant's contention he lost his ability to

make "an intelligent evaluation of the situation and [form] a

voluntarily intention to make a statement without the assistance

of counsel" after being told he was charged with murder, we are

not persuaded.       "[T]he fact that [a] defendant was distressed

and emotional is not by itself sufficient to render his [or her]

confession involuntary."        Galloway, supra, 133 N.J. at 657.

       Defendant    argues   his       confession        was    "the     product     of

intimidation, coercion and deception," as police capitalized on

his fear of Clemons' retaliation against him or his mother,

essentially    forcing    him     to    talk.       He    cites     as    a   threat,

Detective    Craig's    comment    he    would    "drop        [him]   downstairs,"

meaning take him to the county jail where Clemons was being

detained, "if he didn't start talking."

       Having considered the events depicted on the DVD, we reject

defendant's argument as lacking merit.                    Use of psychological

tactics is not prohibited.         Miller v. Fenton, 796 F.2d 598, 605

(3d Cir. 1986).      "Unlike the use of physical coercion, . . . use




                                        17                                    A-6123-11T3
of a psychologically-oriented technique during questioning is

not inherently coercive."               Galloway, supra, 133 N.J. at 654.

Such   ploys      may    "play    a    part    in    the    suspect's          decision          to

confess,    but    so     long    as   that    decision         is   a    product         of    the

suspect's       own      balancing     of      competing         considerations,                the

confession is voluntary."              Miller, supra, 796 F.2d at 605.                          Cf.

State v. Patton, 362 N.J. Super. 16, 32 (App. Div.) ("[A] police

officer    in    the     interrogation        process      may,      by       the    officer's

statements,       make    misrepresentations          of    fact         or    suggest         that

evidence in the form of reports or witnesses exist that will

implicate a suspect."), certif. denied, 178 N.J. 35 (2003).

       Here, no physical force or threats of same were made.                                    The

interview was not lengthy, lasting a little more than an hour.

During    the    interrogation,        there       were    no    signs        defendant         was

fatigued,       confused     or    under       the   influence           of    intoxicating

substances.        Detective Craig's comments expressed frustration

with defendant's changing story, but the remark "[w]e're not

offering to do anything for you other than drop you downstairs

in the middle of the population and you fend for yourself,"

merely    stated      police     responsibility       to    effectuate              the    arrest

warrant and place defendant in jail.

       As to the police discussion of Clemons' past violence and

affiliation with a gang, these facts were known to defendant,




                                              18                                          A-6123-11T3
who admitted he had known Clemons for a long time.              Police

acknowledgement and discussion of these facts was not the "'very

substantial' psychological pressure[]" necessary for finding a

defendant's will was overborne.         State v. Cook, 179 N.J. 533,

563 (2004).    Accordingly, we reject the notion Detective Craig's

comments acted to "strip[] defendant of his capacity for self-

determination and actually induce the incriminating statement

. . . ."     State v. Fletcher, 380 N.J. Super. 80, 89 (App. Div.

2005) (citation and internal quotation marks omitted).

    Defendant suggests requests to have his mother present in

the room constituted equivocal assertions of his right to remain

silent.    We disagree.

    Before     Detective   Craig   informed   him   of   the   charges,

defendant, who was age twenty-two, asked "[w]here's my mom," as

he thought "my mom[] is gonna be here."         Once informed of his

arrest, defendant exclaimed, "I thought you were going to be

bringing my mom in here."      Subsequent to revealing his role in

the robbery, defendant requested "[c]an my mom be in here while

. . . we do this, please?"          At that point, Detective Craig

replied "she's a little tied up right now," but later he would

"take a break at a certain point [and he would] go find out

where she's at [sic] . . . ."      Toward the end of the interview,

defendant again asked for his mother.




                                   19                          A-6123-11T3
       The Court recently

             considered the analytical implications of
             requests by an adult to speak with someone
             other than an attorney, concluding that such
             requests do not imply or suggest that the
             individual desires to remain silent.     See,
             e.g., State v. Martini, 131 N.J. 176, 228-32
             (1993) (concluding that defendant's request
             to speak with paramour before "lay[ing] out
             his   entire   involvement"    was   not   an
             invocation of right to remain silent); State
             v. Timmendequas, 161 N.J. 515, 616 (1999)
             (concluding that request to speak with
             housemate was not, under the circumstances,
             invocation of right to remain silent).

             [Diaz-Bridges, supra, 208 N.J. at 567.]

The Court explained, "[a]lthough the mere request by an adult to

speak with a parent does not equate to an invocation of the

right to remain silent, it does necessitate a review of the

context in which the request was made."           Ibid.      Often "it [is]

not the request to speak with the parent, but that request in

the context of other facts that [gives] rise to the conclusion

that the right to silence had been invoked."           Id. at 568.

       Here, defendant made an inquiry of his mother's whereabouts

and repeated his belief she was to be present.               Detective Craig

told   him   he   would   check   during   a   break   and    later   advised

defendant could see his mother before he was placed in jail.

Nothing about defendant's requests reflect continuation of the

conversation was contingent on his mother's presence.                 Rather,

defendant's statements suggest a desire for support and cannot



                                     20                               A-6123-11T3
be construed as an assertion of his right to remain silent.                                 See

id.    at   556,    572    (concluding         the    defendant's         "frequent[]       and

fervent[]" expressions of his desire to speak with his mother

over the course of a ten-hour interview did not amount to an

invocation of his right to remain silent).

       Defendant's final suggestion is the judge mistakenly found

he executed a waiver of his Miranda rights, which led to the

erroneous conclusion his statement was voluntary.                                We are not

persuaded.

       There was no written Miranda waiver executed.                                  However,

"[f]ailure to sign a form of waiver does not preclude a finding

of waiver, nor does it make further questioning a violation of

[a] defendant's constitutional rights."                         State v. Warmbrun, 277

N.J.    Super.     51,    62     (App.    Div.      1994)      (citation        and   internal

quotation marks omitted), certif. denied, 140 N.J. 277 (1995).

Defendant      orally       acknowledged             he       understood        his   rights,

including     the       rights    to     not    say       a   word   and   to     cease     the

interview at any time.

       The trial judge's conclusions were made after considering

the totality of the circumstances presented.                          State v. Nyhammer,

197 N.J. 383, 402, cert. denied, 558 U.S. 831, 130 S. Ct. 65,

175 L. Ed. 2d 48 (2009).                  They were not based, as defendant

suggests,     on    a     mistaken       factual      finding        he   had    executed      a




                                               21                                     A-6123-11T3
written waiver.              We determine the facts support the conclusion

that       defendant     knew     and     understood         his    rights,      which     he

intelligently, knowingly and voluntarily waived in admitting his

culpability.

       Although        not    directly    raised,       we    consider       whether     the

minimum break in custody delineated in Shatzer and applied in

Wessells must be imposed under these facts where the break in

custody occurs when a defendant seeks to end the interrogation.

Following our review, we conclude it does not.                        Wessells adopted

the rule announced in Shatzer, regarding custodial statements

made       following     the     invocation      of     the        right    to     counsel.

Wessells, supra, 209 N.J. at 413.                  In Shatzer, the United States

Supreme Court recognized what had become known as an exception

to the longstanding Edwards rule, which mandates interrogations

cease once a suspect invokes the right to counsel, until counsel

is    provided     or    the    suspect    later    re-initiates           communication.

Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885,

68    L.    Ed.   2d    378,    386   (1981).       Jurisprudence           developed     to

consider a "break-in-custody exception" to the bright-line rule

Edwards established, whereby the coercive taint of interrogation

and    presumptive           involuntariness       of    statements         made     during

reviewed interrogation were eliminated.                        Wessells, supra, 209

N.J. at 404-07.          Specifically, the issue considered was whether




                                            22                                     A-6123-11T3
a break in custody followed by a waiver of rights nullified the

prior invocation of the right to counsel and allowed police to

renew interrogation.          See id. at 404-05 (discussing post-Edwards

holdings addressing the break-in-custody exception).

      In   Shatzer,     the     United    State    Supreme    Court    defined   the

scope of this required break in custody.                     The Court held any

statements made by a defendant less than fourteen days following

invocation      of     the    right       to   counsel       were     presumptively

involuntary and must be suppressed.                Shatzer, supra, 559 U.S. at

111, 130 S. Ct. at 1223, 175 L. Ed. 2d at 1057.                           See also

Edwards, supra, 451 U.S. at 484, 101 S. Ct. at 1884, 68 L. Ed.

2d at 386 (noting "additional safeguards are necessary when the

accused asks for counsel").              As discussed, our Court in Wessells

adopted    this      fourteen-day      standard     to   define     the   break-in-

custody exception, once the right to counsel had been invoked.

Wessells, supra, 209 N.J. at 413.

      The rules in Shatzer and Wessells were limited to the right

to   counsel.        Although    the     opportunity     presented     itself,   the

United States Supreme Court and our Supreme Court did not extend

the fourteen-day break-in-custody requirement to invocation of

other constitutional protections.                 A review of precedents leads

to the conclusion Shatzer's fourteen-day rule is specific to the




                                          23                               A-6123-11T3
right to counsel and is not generally imposed if a defendant

asserts the right to remain silent.

      The   Fifth        Amendment          right      to    counsel      is    distinguishable

from the right against self-incrimination, and actually is an

additional protection against self-incrimination.                                     See Michigan

v. Mosley, 423 U.S. 96, 104 n.10, 96 S. Ct. 321, 326 n.10, 46 L.

Ed. 2d 313, 321 n.10 (1975) (acknowledging the invocation of the

right to counsel provides additional protection against self-

incrimination); State v. Reed, 133 N.J. 237, 258, 262 (1993)

(noting the right to counsel is distinct from the right against

self-incrimination).                  It    is    well-settled           the    State      has    the

burden to show a defendant relinquished the right to counsel.

State v. McCloskey, 90 N.J. 18, 28 (1982).                                      This burden is

"heavy"     and     will        not        be    implied.           Ibid.            Further,     the

administration           of      new        Miranda          warnings          has     been       held

insufficient to provide the necessary safeguards to ensure a

waiver is valid once legal representation is requested.                                       Id. at

27; see also Mosley, supra, 423 U.S. at 104 n.10, 96 S. Ct. at

326   n.10,   46        L.    Ed.     2d    at    321       n.10.        On    the    other     hand,

safeguards        for        self-incrimination              alone       have        not   been    so

circumscribed.

      A   voluntary           intelligent         statement         by    a    defendant        fully

informed of his rights is admissible.                               "[A] suspect is always




                                                  24                                       A-6123-11T3
free to waive the privilege and confess to committing crimes,"

so long as the waiver is not the product of police coercion.

State v. Presha, 163 N.J. 304, 313 (2000).

       Following our assessment of the totality of circumstances

surrounding the arrest and interrogation, including such factors

as "the suspect's age, education and intelligence, advice as to

constitutional          rights,     length       of   detention,          whether        the

questioning was repeated and prolonged in nature and whether

physical punishment or mental exhaustion was involved,"                           as well

as    defendant's       "previous       encounters    with    the    law,"       State     v.

Miller, 76 N.J. 392, 402 (1978), we reject defendant's argument

that    his   "second      statement       represented       nothing      more      than   a

continuation       of    the     first."         We   discern       no    due     process

violations by police in conducting the May 15 interview.

       Substantially       for    the     reasons     identified         by   the    trial

judge, we conclude the second interrogation, preceded by newly

administered Miranda warnings, resulted in defendant's voluntary

uncoerced choice to reveal his involvement in the crimes under

investigation.          There is no poisonous taint from the May 14

Miranda violations requiring exclusion of his confession.

       Importantly, defendant never invoked the right to counsel,

which would require the extra protections discussed in Shatzer

and    Wessells.        Here,     the    break   in   custody       resulted      because




                                            25                                    A-6123-11T3
defendant said nothing inculpatory during the first interview

and   was    allowed      to    leave.      We       recognize          that    interrogation

should have ended sooner, but ultimately defendant was taken

home.

      The first and second interviews were separated by fourteen

hours, during which defendant was not in custody, but home and

free to move about as he chose.                           When police asked him to

accompany        them    to    the    prosecutor's          office       because      Detective

Craig wanted to ask him additional questions, he freely agreed,

fully cognizant of the subject matter and the fact that police

wanted      to    question      him    further.             Prior       to    commencing      any

questioning, Detective Craig carefully read each right afforded

defendant        under    Miranda,       and        asked     him       each    time    if    he

understood that right.               Defendant acknowledged he understood his

rights both orally and by initialing the Miranda card.                                       Once

police informed defendant they obtained sufficient information

showing     he    was    with    Clemons       during       the     robbery      and    murder,

satisfying        the    requirements          to     secure        an       arrest    warrant,

defendant confessed.            We conclude this confession was admissible

and the judge properly denied defendant's motion to suppress.

      Defendant's        next    argument       advanced          the    exclusion      of    his

custodial statement invoking the "fruit of the poisonous tree"

doctrine.         Defendant      maintains          the     "egregious         constitutional




                                            26                                         A-6123-11T3
violations"      of     the     initial    interview     tainted         the    subsequent

questioning       and    his     custodial        statement    is    inadmissible         as

"fruit    of     the    poisonous        tree."      Following       our       review,    we

conclude this argument is unavailing.

    "The         fruit-of-the-poisonous-tree                doctrine          denies     the

prosecution the use of derivative evidence obtained as a result

of a Fourth or Fifth Amendment violation."                          State v. O'Neill,

193 N.J. 148, 171 n.13 (2007) (citations omitted).                             Our Supreme

Court noted the doctrine as developed by United States Supreme

Court holdings had "'never gone so far as to hold that making a

confession       under         circumstances        which     preclude          its     use,

perpetually      disables        the   confessor     from     making      a    usable    one

after    those    conditions       have    been     removed.'"           Ibid.    (quoting

United States v. Bayer, 331 U.S. 532, 540-41, 67 S. Ct. 1394,

1398, 91 L. Ed. 1654, 1660 (1947)).                      "Under either state or

federal     law,        the     critical     determination          is     whether       the

authorities       have        obtained    the     evidence    by     means       that    are

sufficiently independent to dissipate the taint of their illegal

conduct."      State v. Johnson, 118 N.J. 639, 653 (1990).

    In this regard, "when law-enforcement authorities obtained

an initial confession in violation of the defendant's common-law

privilege against self-incrimination," a subsequent confession

made despite properly informing a defendant of his rights may be




                                            27                                    A-6123-11T3
excluded.          Id. at 652.       The critical factual examination is

whether a second statement was the product of unconstitutional

police conduct tainting the first, considering "the time between

confessions, any intervening circumstances, whether there was a

change    in   place,      whether   the    defendant      received    an    adequate

warning of his rights, whether [the] defendant initiated the

second confession, the effect of his having made a confession,

and the purpose and flagrancy of police misconduct."                             Hartley,

supra, 103 N.J. at 283 (citation and internal quotation marks

omitted).

       When viewing all facts and circumstances, we conclude, as

did    the     trial      judge,    defendant's        confession     was    not       the

culmination of coercion carrying over from the previous night,

but of his own volition upon learning the new evidence against

him.         The    information      obtained      from     Spencer     constitutes

"intervening circumstances" separating the tenor and outcome of

the two periods of questioning.             See ibid.

       As the trial judge considered, the gaps between the two

interrogations allowed defendant to freely return home to his

family.      He rested and showed no signs of fatigue.                  Although he

had    insisted      on    ending    the   May    14    examination,        he    freely

accompanied police during the early evening on May 15 when told

they had more questions for him.                 Before a single question was




                                           28                                    A-6123-11T3
uttered,     defendant      was     advised     of    his    Miranda       rights       and

informed of the charges against him, as set forth in the warrant

presented.     Finally, defendant had prior interactions with the

criminal justice system and repeatedly acknowledged he was aware

of   and   understood       his    rights.       Defendant         made   no    specific

inculpatory statements on May 14.                Police brought defendant in

on May 15 because Spencer and information obtained during the

continued police investigation linked him to the gas station

robbery and shooting.

      Based on these facts, we do not agree the two periods of

questioning    were     inextricably         linked      such      that   the     May    15

statement was somehow tainted.               Therefore, there was no evidence

wrongfully obtained that led to the additional questioning.                              We

conclude      defendant's           confession        was         the     product        of

constitutionally appropriate procedures.                  It did not result from

police misconduct.

                                         II.

      Defendant      also     challenges       the    introduction         of    graphic

autopsy photographs, during the medical examiner's testimony,

which depicted death-rendering wounds of the victim.                            Defendant

characterizes        this         evidence      as     "unduly          inflammatory."

Succinctly,    the    judge's       ruling     allowed      the    photographs      as    a

demonstrative     aid    to   the     coroner's      testimony;         they    were    not




                                         29                                      A-6123-11T3
introduced   into       evidence.        See    State    v.   Scherzer,    301   N.J.

Super.   363,     434    (App.   Div.)     ("There       is   nothing     inherently

improper     in    the     use      of     demonstrative           or   illustrative

evidence."), certif. denied, 151 N.J. 466 (1997).

      Importantly,       defendant       has    not     provided    the   challenged

exhibits in the appellate record.                 Nonetheless, the issue does

not   require     discussion        because       no     demonstrated      prejudice

resulted to defendant by the use of the photographs because the

jury acquitted defendant of felony murder, showing it thoroughly

evaluated all evidence in reaching its verdict.                         See State v.

Dellisanti, 203 N.J. 444, 463 (2010) (noting an error did not

deprive the defendant of a fair trial where the jury ultimately

acquitted him of a related charge).

                                         III.

      Finally, we reject, as lacking merit, defendant's related

claims (1) the judge erroneously denied his motion for a new

trial, R. 3:20-1, which asserted the State failed to prove all

elements of armed robbery (Point Three); (2) the State failed to

prove each element of accomplice liability related to the armed

robbery such that his motion for acquittal should have been

granted, R. 3:18 (Issue I); and (3) the jury charge on this

offense was flawed (Issue II).             The challenges key on the intent

element, as defendant argues no evidence showed he "shared the




                                          30                                 A-6123-11T3
intent with . . . Clemons to commit an armed robbery."                                  See

State v. Sims, 140 N.J. Super. 164, 173 (App. Div. 1976) ("It is

clear in New Jersey that a defendant can be held as an aider or

abettor only if he [or she] had the same criminal intent that

must be possessed by the principal wrongdoer.").

    The arguments are rejected substantially for the reasons

set forth by the trial judge.               Specifically, the State presented

circumstantial evidence, which if accepted by the jury, proved

defendant's knowledge and aid in completing the armed robbery of

the gas station.       He knew Clemons "possessed guns" and expressed

a desire "to get money"; revealed he and Clemons selected the

gas station for the robbery because it was "an easy spot to go

get";   drove    Clemons     to   the   gas        station     and    waited    for     his

return;   "parked     the    vehicle    at        a    location    removed     from     any

commercial      establishment";       and        admitted     to   Spencer     "we"     had

committed a robbery.

    "Faith       in   the   ability     of        a    jury   to     examine    evidence

critically      and   to    apply     the        law   impartially      serves     as    a

cornerstone      of   our    system     of        criminal     justice."       State     v.

Afanador, 134 N.J. 162, 178 (1993).                    "Appellate intervention is

warranted only to correct an injustice resulting from a plain

and obvious failure of the jury to perform its function."                          State

v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (citation and




                                            31                                  A-6123-11T3
internal quotation marks omitted), certif. denied, 134 N.J. 476

(1993).    If the evidence presented allowed a rational jury to

find beyond a reasonable doubt the essential elements of the

crime, the court will not interfere.             State v. Jackson, 211 N.J.

394, 413-14 (2012); Afanador, supra, 134 N.J. at 178.

    The jury was provided with defendant's testimony disputing

his awareness Clemons was carrying a firearm when driving to the

gas station to get some money.             The jury verdict signals its

rejection of his testimony as not credible and a conclusion the

significant      circumstantial       evidence      supported   defendant's

knowledge Clemons was armed.          Defendant's contention the jury's

verdict    rested       "merely   upon     suspicion,     speculation,      or

conjecture or an[] overly attenuated piling of inference upon

inference" is rejected.

    We    also   find    unavailing   defendant's     suggestion   the    jury

charge    on   accomplice   liability      and   first-degree   robbery   was

defective.     No objection to the charge was made, requiring our

examination on appeal under the plain error rule, R. 2:10-2.

State v. Torres, 183 N.J. 554, 564 (2005).               In the context of

challenges to jury charges, plain error is: "legal impropriety

in the charge prejudicially affecting the substantial rights of

the defendant and sufficiently grievous to justify notice by the

reviewing court and to convince the court that of itself the




                                      32                            A-6123-11T3
error   possessed     a   clear     capacity      to   bring    about   an    unjust

result."       State v. Hock, 54 N.J. 526, 538 (1969), cert. denied,

399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).                          "If a

defendant fails to object to a trial court's instructions, the

failure to challenge the jury charge is considered a waiver to

object to the instruction on appeal."                   State v. Maloney, 216

N.J. 91, 104 (2013).         However, we will reverse if the error is

"clearly capable of producing an unjust result."                  R. 2:10-2.

       Reviewing the charge as a whole, State v. Jordan, 147 N.J.

409, 422 (1997), we note the trial court charged first-degree

robbery, addressing the elements of N.J.S.A. 2C:15-1(a) and (b),

as well as accomplice liability, as set forth in the Model Jury

Charges.       Model Jury Charge (Criminal), "Liability for Another's

Conduct" (1995).         The charge related the elements of accomplice

liability, found in N.J.S.A. 2C:2-6(c)(1)(b) (providing that one

is legally accountable for the conduct of another when he or

she,    "[w]ith    the    purpose    of    promoting     or    facilitating        the

commission of the offense . . . [a]ids or agrees or attempts to

aid such other person in planning or committing it").                    Included

also    were    the   definitions     of       "aid"   and    "purposely."         See




                                          33                                 A-6123-11T3
N.J.S.A. 2C:2-2(1); Model Jury Charge (Criminal), "Liability for

Another's Conduct" (1995).4

     In delivering the accomplice liability charge, the judge

described the underlying crime as robbery, rather than armed

robbery.      Defendant    contends       this    instruction      was    "fatally

defective."    Defendant is incorrect.

     Defendant's argument asserting the crime he was accused of

was "armed robbery," ignores that first-degree robbery includes

conduct "if in the course of committing the theft the actor

attempts to kill anyone, or purposely inflicts or attempts to

inflict serious bodily injury, or is armed with, or uses or

threatens    the    immediate    use    of   a   deadly    weapon."       N.J.S.A.

2C:15-1(b).    The jury was told the State had to prove defendant

aided Clemons, who either must have "killed [the gas station

attendant] and/or [] was armed with a deadly weapon."                      Because

defendant    could   be   convicted      under    either    theory,      the   trial

court appropriately declined to refer to the offense as "armed

robbery."

     We    reject    defendant's       claims    this     charge   as    delivered

misstated the law or confused the jury.                 We conclude the charge

adequately    identified        the    applicable       accomplice       liability

4
     The judge distributed an outline to aid the jury "[i]n
order to facilitate [its] understanding of the [c]ourt's
instructions with regard to robbery and felony murder . . . ."



                                        34                                 A-6123-11T3
principles    and   articulated    the   elements    necessary    for     a

conviction of first-degree robbery, explaining "[t]he State must

prove it was . . . defendant's conscious object that a specific

crime charged be committed."       Also, because defendant alone was

on trial and no lesser-included offenses were charged, the jury

would not be confused or misunderstand the accomplice liability

charge regarding the first-degree robbery.

                                   IV.

    We review the imposed thirteen-year sentence, in light of

defendant's suggestion of excessiveness and his claim the judge

misapplied applicable aggravating factors.       "Appellate review of

the length of a sentence is limited."      State v. Miller, 205 N.J.

109, 127 (2011).    A reviewing court "does not sit to substitute

its judgment for that of the trial court."          State v. O'Donnell,

117 N.J. 210, 215 (1989).     "The critical focus of the appellate

power to review and correct sentences is on whether the basic

sentencing    determination   of   the   lower   court   was     'clearly

mistaken.'"    State v. Jarbath, 114 N.J. 394, 401 (1989).          Thus,

appellate review of a sentencing decision requires this court

consider:

            first,   whether   the   correct   sentencing
            guidelines, or . . . presumptions, have been
            followed;    second,   whether    there    is
            substantial   evidence  in   the  record   to
            support the findings of fact upon which the
            sentencing court based the application of



                                   35                            A-6123-11T3
            those guidelines; and third, whether in
            applying those guidelines to the relevant
            facts the trial court 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        focuses    his    challenge         on    the   inclusion      of

aggravating factor two, "[t]he gravity and seriousness of harm

inflicted on the victim," N.J.S.A. 2C:44-1(a)(2).                       He asserts

"the facts adduced at trial suggested that [d]efendant's role in

th[e] incident was limited to driving the car that took Clemons

to and from the scene of the crime."

    The trial court considered application of the factor and

recognized     the   seriousness      of     the   harm       that   resulted    from

defendant's actions.        The judge noted, "[t]here isn't [a harm]

more serious than death."             Further, he found defendant drove

Clemons to and from the gas station knowing he intended to use a

firearm   to   accomplish      the    robbery,     and    should     have   known    a

violent encounter was imminent.              The judge made these additional

findings:

            [T]he statute provides, including whether or
            not the defendant knew or reasonably should
            have known that the victim of the offense
            was particularly vulnerable or incapable of
            resistance.    Here we have a retail gas
            station attendant 11 o'clock at night all
            alone and we have somebody who is going to
            get money and we know that person possesses
            guns.    How anyone who is helping that



                                        36                                  A-6123-11T3
              person, in this case [defendant], would
              conclude anything other than there was going
              to be either a very violent physical type
              robbery or that . . . Clemons was armed,
              this [c]ourt can't imagine.

                   [Defendant] had to know . . . Clemons
              was armed, that's why he stayed out of sight
              and let . . . Clemons do what . . . Clemons
              was going to do. The victim was just plain
              vulnerable and had no chance whatsoever
              . . . .    Therefore, the [c]ourt finds that
              aggravating factor two applies.

Based    on   this   analysis,       we   cannot    say   the   judge    abused      his

discretion.

      Additional      aggravating         factors     applied       included     factor

three,    "[t]he     risk    that     the    defendant       will    commit    another

offense," N.J.S.A. 2C:44-1(a)(3), given defendant's pattern of

previous offenses, and factor nine, "[t]he need for deterring

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

2C:44-1(a)(9).       Unchallenged is the trial court's finding there

were no mitigating factors.

      Following our review, we determine the judge's conclusion

the aggravating factors outweighed the non-existent mitigating

factors constituted a reasonable application of the guidelines

to the facts, State v. Lawless, 214 N.J. 594, 606 (2013), and

properly reflected New Jersey's sentencing paradigm focusing on

the offense and not the offender, State v. Hodge, 95 N.J. 369,

375 (1984).      Finally, the length of the sentence was within the




                                            37                                 A-6123-11T3
first-degree range, N.J.S.A. 2C:43-6(a)(1), and does not shock

our judicial conscience, State v. Ghertler, 114 N.J. 383, 393

(1989).   Our intervention is unwarranted.5

    Affirmed.




5
     We reject as lacking merit defendant's claim that his
sentence was disparate in light of the two concurrent fifteen-
year sentences imposed on Clemons following his guilty plea. R.
2:11-3(e)(2).



                                38                     A-6123-11T3
