                                NOT FOR PUBLICATION WITHOUT THE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-2396-15T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KELLI D. HENNESSEY,

     Defendant-Appellant.
_________________________________

                    Argued September 12, 2018 – Decided September 26, 2018

                    Before Judges Messano and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment Nos. 07-10-
                    1023 and 12-10-1034.

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

                    Douglas B. Pagenkopf, Assistant Prosecutor, argued
                    the cause for respondent (Charles A. Fiore, Gloucester
                    County Prosecutor, attorney; Douglas B. Pagenkopf, of
                    counsel and on the brief).
PER CURIAM

      A jury convicted defendant Kelli D. Hennessey of second-degree assault

by auto, N.J.S.A. 2C:12-1(c)(3)(a) (recklessly causing serious bodily injury

while operating a vehicle in violation of N.J.S.A. 39:4-50 within 1000 feet of

school property) (count one), and two counts of third-degree assault by auto,

N.J.S.A. 2C:12-1(c)(3)(a) (recklessly causing bodily injury under the same

circumstances) (counts two and three). On the same evidence, the judge found

defendant guilty of driving while intoxicated (DWI) within 1000 feet of school

property, N.J.S.A. 39:4-50(g)(1).    The judge imposed a seven-year term of

imprisonment on count one, concurrent four-year terms of imprisonment on

counts two and three, and a consecutive sentence of 180 days in the county jail,

plus additional mandatory penalties, on the motor vehicle violation.

      Defendant raises the following points on appeal:

            POINT I

            AN EMPTY ALCOHOL CONTAINER FOUND IN
            MS.   HENNESSEY'S      CAR   CONSTITUTED
            INADMISSIBLE PROPENSITY EVIDENCE, IN
            VIOLATION OF N.J.R.E. 404B. MOREOVER, NO
            LIMITING INSTRUCTION WAS PROVIDED WITH
            RESPECT TO THE EMPTY CONTAINER.




                                                                        A-2396-15T3
                                       2
POINT II

OVER     VEHEMENT      OBJECTION,     THE
PROSECUTOR CROSS-EXAMINED DEFENDANT
ON HER FAILURE TO TELL OFFICER JONES MR.
LAWRENCE'S LAST NAME AFTER SHE WAS
ARRESTED, AND HER REFUSAL TO TALK AFTER
BEING ARRESTED, PREJUDICING DEFENDANT'S
RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS
V, XIV.

POINT III

THE JUDGE'S INSTRUCTION FOR THE JURORS
TO CONTINUE DELIBERATIONS, AFTER THEIR
REPRESENTATION THAT THEY WERE UNABLE
TO REACH A UNANIMOUS VERDICT BUT
WITHOUT FURTHER INQUIRY ABOUT THE
DEADLOCK, DEPRIVED DEFENDANT OF THE
RIGHT TO DUE PROCESS OF LAW AND A FAIR
TRIAL. U.S. CONST. AMEND XIV; N.J. CONST.
(1947) ART. 1, PARS. 1, 9, 10.

POINT IV

THE TRIAL COURT ERRED BY NOT ISSUING A
CLAWANS INSTRUCTION, AS REQUESTED BY
DEFENSE COUNSEL, AFTER THE STATE FAILED
TO CALL A CRUCIAL WITNESS, POLICE
DETECTIVE MOAN, TO TESTIFY AT TRIAL.

POINT V

THE TRIAL WAS SO INFECTED WITH ERROR
THAT EVEN IF EACH INDIVIDUAL ERROR DOES
NOT REQUIRE REVERSAL, THE AGGREGATE OF
THE ERRORS DENIED DEFENDANT A FAIR
TRIAL. (Not Raised Below).

                                            A-2396-15T3
                    3
                POINT VI

                THE SEVEN-YEAR SENTENCE FOR THREE
                COUNTS OF ASSAULT BY AUTO, AND A
                CONSECUTIVE   180-DAY   SENTENCE    FOR
                DRIVING UNDER THE INFLUENCE IN A SCHOOL
                ZONE WAS MANIFESTLY EXCESSIVE.

        Having considered these arguments in light of the record and applicable

legal standards, we affirm.

                                          I

        We summarize some of the trial evidence to place defendant's arguments

in some context.

        In the early morning hours of November 6, 2011, Glassboro Police Officer

Mindy Knight responded to the scene of a car accident near a local WaWa

convenience store. She saw a woman, J.H.,1 covered in blood and lying on the

ground in the middle of the road. Two other women, R.S. and J.R., were sitting

on a nearby curb. Knight saw a white Taurus near the scene with damage to its

hood, a large hole in the passenger-side windshield and a side-view mirror

stripped off.




1
    We use initials to maintain the confidentiality of the victims.
                                                                         A-2396-15T3
                                          4
      All three women were sorority sisters at nearby Rowan University and had

walked from the school to buy some food at a restaurant near the WaWa. As

they walked along the side of the road, a car struck them from the rear.        J.H.

was the most seriously injured, suffering a broken collarbone, tibia, fibula, facial

lacerations and a permanent injury to her hip.

      Emergency medical technicians and other police officers arrived at the

scene, including Police Officer James Jones. Jones canvassed the area for

witnesses, and saw defendant and one of the victims standing by the side of the

road "hugging" and "crying."       Both women said they did not see who was

driving the car. Jones then located a New Jersey temporary registration tag in

defendant's name in the Taurus. He also found a purse in the car with two

driver's licenses in defendant's name.

      As Jones spoke to other officers near the damaged car, defendant

approached and admitted that she had been driving the vehicle. Defendant's

eyes were bloodshot, her speech was slurred and Jones detected the odor of

alcohol. Defendant confusedly claimed another car struck her car from behind

and a third car might have been involved. Jones saw no evidence of damage to

the rear of defendant's car, and no other vehicle at the scene. After defendant

failed a series of field sobriety tests, Jones arrested her and transported her to


                                                                            A-2396-15T3
                                         5
the police station. Defendant's blood alcohol content registered 0.13 on an

Alcotest machine, well above the legal limit.

      Defendant testified on her behalf and denied she was driving the car at the

time of the accident, claiming a friend of her ex-husband, Robert "Robbie"

Lawrence, was driving. Defendant admitted Lawrence was driving because she

had been drinking. At some point in the evening, defendant called her ex -

boyfriend and father of one of her children, Frankie Reim, and arranged to meet

Reim at the WaWa to borrow some money. However, when Reim arrived, he

and Lawrence began to argue and fight. Reim grabbed the keys to defendant's

car, went inside the WaWa and gave the keys to a police officer in the store.

According to defendant, the officer gave her a ride to the police station and

another officer gave her a ride back to her ex-husband's home.

      Her ex-husband and Lawrence drove to the police station to retrieve her

keys and returned. She let Lawrence drive her home in her car. Defendant fell

asleep, only to be awoken by a loud bang. Lawrence pulled the car over into a

parking lot and ran off, leaving defendant, the injured women and the damaged

car behind. Defendant admitted telling police her name and that she owned the

car, but not that she was driving.




                                                                         A-2396-15T3
                                       6
        Reim testified that he saw defendant earlier in the evening when she

borrowed money from him. Defendant was intoxicated and with another man

who was driving defendant's car. Defendant left after a short visit and called

Reim a bit later, around 8:30 or 9 p.m., and asked if Reim could pick her up at

the WaWa. Reim said he drove there with a friend and observed defendant and

this other man drive into the parking lot and almost strike a pole. According to

Reim, both defendant and the driver were "trashed." Reim saw a police officer

inside the WaWa, and, after getting into an argument with defendant and the

driver, took the keys to defendant's car and gave them to the officer, telling him

neither defendant nor her male friend should be driving.

        Sergeant Gordon Muller of the Franklin Township Police Department also

testified on defendant's behalf. He acknowledged giving defendant rides in the

past but could not recall if he gave her one on the evening of November 5-6,

2011.

                                          II

        We first deal with the alleged trial errors defendant raises in Points I, II,

and IV.

        Glassboro Police Detective Jack Manning, who was trained in accident

investigation and reconstruction, testified that he visited the scene later in the


                                                                             A-2396-15T3
                                          7
morning and examined defendant's Taurus at the police impound lot where it

had been towed. The detective found three plastic "Appletini" 2 containers, one

in the rear of the passenger compartment on the driver's side, and two in a bag

in the trunk.

        Defendant objected as the detective started to identify the containers,

contending the evidence was irrelevant because there was no proof that

defendant had recently consumed what was in the containers. The prose cutor

noted that defendant was charged with crimes and motor vehicle offenses,

including having an open alcoholic beverage container in the vehicle, N.J.S.A.

39:4-51(b), which required proof of intoxication or proof the container was in

the car. The judge overruled the objection.

        At the end of its case, the State sought to introduce the containers into

evidence. Defendant again objected, claiming there was no evidence that the

containers actually contained alcohol. The judge agreed, ruling the detective

provided "no clear indication that [the containers] did contain alcohol," and

ruled them inadmissible.




2
    Detective Manning identified this as "an alcoholic beverage."
                                                                         A-2396-15T3
                                        8
      Before us, defendant argues Manning's testimony was inadmissible

"propensity evidence," in violation of N.J.R.E. 404(b), and even if it were

admissible, the judge failed to give any limiting instruction. We disagree.

      Despite Manning's testimony that the Appletini containers contained

alcoholic beverages and that one of them at least had some residue in it when

found, the judge seemingly accepted that the State had to elicit more explicit

testimony from Manning, e.g., he smelled the odor of alcohol, or tested the

contents. However, evidence is relevant if it has "a tendency in reason to prove

or disprove any fact of consequence to the determination of the action." N.J.R.E.

401 (emphasis added). A person's consumption of alcohol while driving is itself

a separate offense.    N.J.S.A. 39:4-51(a).    We have said, "[o]pen alcohol

containers in the vehicle would have a tendency in reason to prove recent alcohol

consumption . . . ." State v. Irelan, 375 N.J. Super. 100, 117 (App. Div. 2005).

In our minds, Manning's testimony was clearly sufficient to permit the jury to

infer that defendant had recently consumed alcohol.

      "The threshold determination under Rule 404(b) is whether the evidence

relates to 'other crimes,' and thus is subject to continued analysis under Rule

404(b), or whether it is evidence intrinsic to the charged crime, and thus need

only satisfy the evidence rules relating to relevancy, most importantly Rule


                                                                         A-2396-15T3
                                       9
403." State v. Rose, 206 N.J. 141, 179 (2011). Evidence may be intrinsic to the

charged crime in two ways. First, "evidence is intrinsic if it 'directly proves' the

charged offense. . . . Second, 'uncharged acts performed contemporaneously

with the charged crime may be termed intrinsic if they facilitate the commission

of the charged crime.'" Id. at 180 (quoting United States v. Green, 617 F.3d 233,

249 (3d Cir. 2010)). Here, the evidence that defendant had Appletini containers

in her car, including one in the rear, driver's side of the passenger compartment,

led to the permissible inference that she had recently consumed alcohol and,

therefore, was evidence intrinsic to the charged crimes and offenses.

      Defendant testified that she told a police officer at the scene of the

accident "Robbie was driving," but never provided his last name. According to

defendant, the officer and she argued because he did not believe her. She

"stopped talking" when it appeared she was going to be arrested. Defendant

testified that back at the station, the officer asked her no further questions about

who was driving nor did he seek further information about "Robbie." On direct

examination, defense counsel asked:

            Q.     Since the time that this event happened back in
                   November of 2011, has anyone from the
                   Glassboro Police Department come back to you
                   to try to get you to talk to them about what
                   happened?


                                                                            A-2396-15T3
                                        10
            A.    No.

            Q.    Has any investigator from the County
                  Prosecutor's Office ever contracted you to try to
                  get information from you about the manner in
                  which the [accident] happened or whether or not
                  there was information you could provide about
                  the person who was actually the driver?

            A.    No.

      On cross-examination, the prosecutor posed a series of questions, which

we quote at length:

            Q.    Now, when the police arrived, I guess you told
                  them that, hey, he got away? He's fleeing the
                  scene? I guess that's what you said first thing,
                  right?

            A.    I walked back over to my car, and that's when I
                  saw the officer . . . .

            Q.    And the first thing you said to him was, hey,
                  Robbie Lawrence was driving my car, go get him.
                  He just ran toward [a nearby business]? 3

            A.    That's not the first thing I said, no.

            Q.    When did you say that?

            A.    After I said my name, and that that was my
                  vehicle.



3
 There is an obvious error in the transcript that conflates the prosecutor's next
question with defendant's previous answer.
                                                                         A-2396-15T3
                                       11
Q.   And then you said to him, hey, Robbie Lawrence
     just went flying across the street?

A.   Well, I said . . . Robbie was driving.

     ....

Q.   And you gave the police an accurate description
     of what Robbie Lawrence looked like?
A.   They didn't ask.

Q.   And you didn't offer that?

A.   I didn't.

Q.   And you gave them -- I guess you told them what
     kind of clothing he was wearing?

A.   They didn't ask, so --

Q.   And you didn't tell them that, huh?

A.   No.

Q.   And you didn't tell them what kind of hair he had,
     what color it was, if he was bald, if he had a
     tattoo. . . .

A.   They didn't ask.

Q.   So you say, Robbie Lawrence was driving my
     car?

A.   I said Robbie was driving my car.

Q.   Oh, you didn't give them a last name?

A.   No.

                                                          A-2396-15T3
                         12
     ....

Q.   And now, when you were doing the [field]
     sobriety test, I guess at that point you were really
     clear in saying, Patrolman Jones, I wasn't driving.
     It was Robert Lawrence.

A.   Well, I told him . . . I wasn't driving, and he said
     he was going to put me under arrest so I didn't
     say anything else.

Q.   So you didn't even tell him the name of the person
     who was driving at that point?

A.   He didn't believe me.

Q.   Because you said, several times.      Robert
     Lawrence, Robert Lawrence, Robbie Lawrence.

A.   I said Robbie, not Robbie Lawrence.

Q.   So you never gave him the name of the person
     who was driving, correct?

A.   Correct.

Q.   So I guess by the time you got back to the police
     station and were getting ready to do that
     Breathalyzer test, correct, you had to blow
     several times into that machine. And there was
     that whole [twenty-]minute period that Patrolman
     Jones was just sitting there observing you,
     correct?

A.   Yes.

     ....


                                                            A-2396-15T3
                         13
            Q.    And you were the only person in the room with
                  Patrolman Jones at that time. And in that
                  [twenty] minutes, you said to him, Patrolman
                  Jones . . . it was Robbie Lawrence?

            A.    No, I didn't say anything.

            Q.    So you didn't tell him then either?

            A.    No.

            Q.    Now, once you get the handcuffs on, and you've
                  been bail set [sic], at that point you said it, right?

            A.    I didn't say anything.

      Defense counsel objected for the first time at this point. At sidebar, he

asked for a curative instruction "that the jury cannot draw any negative inference

from the fact that a defendant doesn't make a statement to a police officer."

Although he reasoned there was "really nothing violative at this point," the judge

decided to give the jury the following instructions:

            [I]t should be clear . . . to all of you that the defendant's
            silence on an issue can never be held against them in
            regard to guilty or innocence. In other words, because
            a defendant chooses not to talk to the police . . . or
            disclose certain things . . . cannot be used as guilt or
            innocence in your determination.

                  ....

                   . . . to the extent questions went to, why didn't
            you tell the police after you were under arrest and
            sitting there that there was somebody else driving, you

                                                                            A-2396-15T3
                                        14
             need not take that into consideration. What happened
             before that is appropriate.      It's your credibility
             determination whether [defendant] disclosed it or not
             disclosed it and . . . whether her not saying it was
             somebody else[] is even evidence of her guilt.

When the prosecutor started to cross-examine defendant about whether she ever

told her father or friends that Robbie Lawrence was driving at the time of the

accident, the judge sustained defendant's objection and forbade that line of

questioning.

       In Point II, defendant argues the prosecutor's cross-examination about

defendant's pre- and post-arrest failure to provide more information about

"Robbie" violated her constitutional right to remain silent. The State contends

that this was proper cross-examination designed to impeach defendant's

testimony on direct examination, and the judge sustained defendant's objections

when the questions ventured astray and provided an appropriate curative

instruction. We find no basis to reverse.

       It is axiomatic that the State may not "impeach a defendant's exculpatory

story, told for the first time at trial, by cross-examining the defendant about his

failure to have told the story after receiving Miranda4 warnings at the time of

his arrest." Doyle v. Ohio, 426 U.S. 610, 611 (1976). In State v. Muhammad,


4
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                           A-2396-15T3
                                       15
182 N.J. 551, 569 (2005), the Court held that "[o]ur state law privilege does not

allow a prosecutor to use at trial a defendant's silence when that silence arises

'at or near' the time of arrest, during official interrogation, or while in police

custody."

      However, the Court has recognized that the prosecutor may highlight for

the jury, through cross-examination or in summation, actual inconsistencies

between pre-trial statements made to law enforcement and the defendant's trial

testimony, State v. Tucker, 190 N.J. 183, 185 (2007), as well as trial testimony

that is inconsistent with, or provides more information than, the defendant's

prior statements to law enforcement after a waiver of rights. State v. Kucinski,

227 N.J. 603, 623-24 (2017).

      Here, the prosecutor's cross-examination regarding defendant's statements

to Officer Jones at the scene of the accident was proper. Id. at 621 (citing

Tucker, 190 N.J. at 190). We agree that questions regarding defendant's post-

arrest failure to provide further information were improper. Muhammad, 182

N.J. at 568.    Under the peculiar facts of this case, however, the cross-

examination does not require reversal.

      In State v. Jenkins, 299 N.J. Super. 61, 65 (App. Div. 1997), the defendant

gave an exculpatory version of events during his direct examination at trial,


                                                                          A-2396-15T3
                                       16
claiming responding officers never gave him a chance to explain, even though

he tried. He testified that after his arrest, no member of the police department

ever spoke to him or took a statement from him. Id. at 66.

      In summation, defense counsel argued that police never gave his client the

opportunity to explain. Ibid. In his summation, the prosecutor argued that the

defendant's testimony was incredible, because at no time after his arrest eight

months earlier did he ever speak to the prosecutor's office or offer an exculpatory

explanation for his conduct. Ibid.

      We concluded that the prosecutor's comments "ordinarily would be

improper." Id. at 68. However, in "explaining his post-arrest silence," the

"defendant necessarily raised the issue . . . ." Ibid. As a result, "the prosecutor

had a right, if not a duty, in the presentation of the State's case to comment on

defendant's post-arrest silence and to offer the State's version as to why

defendant was silent." Id. at 69.5

      Here, defendant testified specifically about the failure on the part of police

to question her further about "Robbie" after her arrest, implying police could

have sought additional information but chose not to do so. In summation,



5
   We nevertheless reversed the defendant's conviction based upon other
misconduct by the prosecutor. Id. at 69-71.
                                                                            A-2396-15T3
                                       17
defense counsel told the jury that defendant's prosecution was the result of

"sloppy police work." In short, defendant "opened the door" with this line of

questioning, id. at 68, and the limited questions the prosecutor posed prior to

defendant's objection did not bring about an unjust result. R. 2:10-2. Moreover,

although the judge's curative instruction was not the model of clarity, it served

to limit whatever improper taint arose from this cross-examination.

      In Point IV, defendant argues the judge erred by refusing to give an

adverse inference charge pursuant to State v. Clawans, 38 N.J. 162, 170 (1962).

The issue arose in the following context.

      Before trial, in a written inquiry to the prosecutor, defendant sought the

identity of officers other than Officer Jones who were at the scene, and which

officers may have spoken to defendant at that time. The prosecutor's paralegal

responded with the name "Officer Moan." 6 Moan was on the State's list of

potential witnesses but was not called to testify. During cross-examination,

Jones said he spoke to Moan at the scene, but he never said Moan or any other

officer was with him when defendant admitted she was driving. Indeed, Jones

said no one else heard defendant's admission.



6
  The record does not disclose his first name, and at some points in the record
the spelling is "Moen."
                                                                         A-2396-15T3
                                      18
      Defendant requested a Clawans charge at the conclusion of the evidence.

In a comprehensive oral opinion, the judge denied the request but permitted

defendant to comment during summation on the State's failure to call the officer.

Defense counsel took advantage of this opportunity at length.

      Defendant now argues the failure to give a Clawans charge was reversible

error. We again disagree.

      In State v. Hill, the Court explained a trial judge may provide an adverse

inference charge after considering and making findings based on the following

circumstances:

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

            [199 N.J. 545, 561 (2009) (quoting State v. Hickman,
            204 N.J. Super. 409, 414 (App. Div. 1985).]

An adverse inference charge is not "invariably available whenever a party does

not call a witness who has knowledge of relevant facts." Washington v. Perez,

430 N.J. Super. 121, 128, (App. Div. 2013) (quoting Hill, 199 N.J. at 561). In

                                                                          A-2396-15T3
                                       19
many cases the only rational inference to be drawn is the witness's testimony

would not have been helpful to the trier of fact. State v. Velasquez, 391 N.J.

Super. 291, 308 (App. Div. 2007) (citation omitted).         Where the witness's

testimony is unimportant, cumulative, or inferior to testimony already presented

on the issue, it is reasonable to infer that non-production is explained by the fact

that the testimony is unnecessary. Id. at 308-09 (citing Clawans, 38 N.J. at 171).

      The judge carefully considered the Hill factors, and we find no reason to

disturb the well-reasoned exercise of his discretion in this regard.

                                        III

      After the court replayed Jones's testimony at the jury's request, the jurors

deliberated for approximately an hour before sending a note to the judge asking,

"What happens if it's not unanimous?" After advising the attorneys, and without

objection, the judge explained the verdict had to be unanimous and instructed

the jurors to continue deliberations. Shortly thereafter, the jurors requested

playback of defendant's testimony.

      After rehearing defendant's testimony at the start of the next trial day, the

jury deliberated for less than thirty minutes and sent out a note that said, " [W]e

are not unanimous and we believe there'll be no change to our decisions." The

judge excused the jurors for lunch, and then, without objection, read the model


                                                                            A-2396-15T3
                                        20
jury charge again and told the jury to continue deliberating.          Immediately

thereafter and outside the presence of the jury, defense counsel noted " [his]

position would have been that it's probably appropriate to [declare a mistrial

and] excuse them." The judge responded, "I figured you're going to bring it up

at some point but it wasn't time for that yet so I wasn't even considering it." It

is unclear from the record how long the jury deliberated thereafter, but the jurors

returned guilty verdicts later that day.

      Defendant argues that "[u]nder the circumstances, before instructing the

jurors to continue deliberations, the judge should have made furthe r inquiry to

determine if the jurors were indeed deadlocked or if further deliberations could

be productive." Defendant submits the trial court should have given the model

instruction approved by the Court in State v. Czachor, 82 N.J. 392 (1980). We

disagree.

      The "determination as to whether a Czachor charge is warranted" is left to

the "sound discretion" of the trial court, and will be reversed only for an abuse

of discretion. State v. Ross, 218 N.J. 130, 144 (2014) (quoting Czachor, 82 N.J.

at 407). "[T]rial courts 'should be guided in the exercise of sound discretion by

such factors as the length and complexity of trial and the quality and duration of

the jury's deliberations.'" Ibid. (quoting Czachor, 82 N.J. at 407).


                                                                           A-2396-15T3
                                           21
      Here, there was six days of trial testimony, but, according to the court's

estimate, the jury had deliberated only ninety minutes before sending out the

second note, which indicated for the first time the possibility of a deadlock.

Further, defense counsel never specifically requested that the judge give the

Czachor charge. We find the argument entirely unpersuasive. 7

                                       IV

      At sentencing, the judge found aggravating factors two, three, six and

nine. N.J.S.A. 2C:44-1(a)(2) (the gravity and seriousness of the harm inflicted

on the victim); (a)(3) (the risk of re-offense); (a)(6) (the extent of defendant's

prior criminal record); and (a)(9) (the need to deter defendant and others). He

considered all mitigating sentencing factors, and gave slight weight to fac tors

six and eleven. N.J.S.A. 2C:44-1(b)(6) (defendant will compensate the victims,

in this case, through restitution); and (b)(11) (imprisonment will work a hardship

on defendant's family).    The judge weighed these factors and imposed the

sentences on the indictable offenses we referenced earlier.         On the DWI




7
   It follows that none of the complained of errors cumulatively "rendered the
trial unfair," as defendant contends in Point V of his brief. State v. Orecchio,
16 N.J. 125, 129 (1954); see also State v. Rambo, 401 N.J. Super. 506, 527 (App.
Div. 2008) (noting that where an appellate court finds no errors at trial, a
defendant's invocation of the cumulative error doctrine is to no avail).
                                                                          A-2396-15T3
                                       22
conviction, the judge noted, among other things, that this was defendant's fourth

DWI conviction and imposed a consecutive 180-day sentence.

      Before us, defendant argues the judge "double-counted" in finding

aggravating factor two, because the serious harm suffered by one of the victims

was inherent in second-degree assaults that cause "serious bodily injury." She

also argues the judge inappropriately weighed the aggravating and mitigating

factors, thereby rendering the seven-year term "excessive." We find no merit to

these arguments. R. 2:11-3(e)(2). We add only the following.

      The Legislature did not necessarily equate the harm contemplated in

aggravating factor two with "serious bodily injury" as defined in N.J.S.A.

2C:11-1(b). State v. Kromphold, 162 N.J. 345, 358 (2000). In that regard, the

Court in Kromphold explained aggravating factor two is "broader and less

precise" than serious bodily injury.       Ibid.   The judge here did not find

aggravating factor two by simply equating it with the serious bodily injury

suffered by J.H.

      "Appellate review of sentencing is deferential, and appellate courts are

cautioned not to substitute their judgment for those of our sentencing courts."

State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606

(2013)). Generally, we only determine whether:


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            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
            original) (quoting State v. Roth, 95 N.J. 334, 364-65,
            (1984)).]

We find no mistaken exercise of the judge's broad discretion in this case.

      Affirmed.




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