                                NOT FOR PUBLICATION WITHOUT THE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-1284-15T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

JOSE L. NEGRETE, a/k/a
BOOM BAP,

     Defendant-Appellant.
_____________________________

                   Submitted May 7, 2018 – Decided April 22, 2019

                   Before Judges Accurso, O'Connor and Vernoia.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Mercer County, Indictment No. 06-01-0121.

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

                   Angelo J. Onofri, Mercer County Prosecutor, attorney
                   for respondent (Randolph E. Mershon, III, Assistant
                   Prosecutor, of counsel and on the brief).
      The opinion of the court was delivered by

O'Connor, J.A.D.

      In 2015, a jury convicted defendant Jose L. Negrete of first-degree

murder, N.J.S.A. 2C:11-3(a)(2); first-degree attempted murder, N.J.S.A.

2C:11-3 and N.J.S.A. 2C:5:1; and first-degree conspiracy to commit murder,

N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-2. He was sentenced to life in prison for

murder and to a consecutive twenty-year term for attempted murder.

Defendant appeals from his convictions and sentence. We affirm.

                                       I

      Defendant was initially tried on these three and other charges in 2008,

but the jury was unable to reach a verdict and a mistrial was declared. In

2009, a second jury found defendant guilty of murder, attempted murder, and

conspiracy to commit murder, but acquitted him of second-degree possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:2-

6, and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) and

N.J.S.A. 2C:2-6. Defendant was sentenced to life in prison for murder and a

consecutive twenty-year term for attempted murder.

      Defendant appealed and, because we discerned juror misconduct during

the course of that trial, we reversed the convictions and sentence and remanded


                                                                       A-1284-15T4
                                      2
the matter for further proceedings. State v. Negrete, 432 N.J. Super. 23 (App.

Div. 2013). The Supreme Court denied certification. State v. Negrete, 217

N.J. 294 (2014). In 2015, defendant was tried a third time, resulting in the

convictions and sentence noted above.

      The pertinent evidence, predominately derived from the testimony of

members of the Almighty Latin King and Queen Nation (Latin Kings), was as

follows. In 2004, defendant was the leader of the Latin Kings in the Trenton

area. Jonathan Rodriguez (Jonathan),1 a member of the Latin Kings, testified

that members of this gang were required to follow defendant's orders or they

risked punishment in the form of physical violence. Defendant decided who

was to be punished and the form of punishment to be inflicted.

      In 2004, there was an ongoing dispute between the members of the Latin

Kings in Trenton and a rival gang, the Ñetas On one particular evening in

2004, members from each gang gathered at a park in order to "fight out" their

differences. The anticipated fight between the two gangs did not materialize

because the police arrived and the gang members dispersed. However, because

it is relevant to one of the issues on appeal, we note that, just before the


1
  Three witnesses share the surname Rodriguez; therefore, for clarity, we refer
to these witnesses by their forenames.


                                                                          A-1284-15T4
                                        3
planned confrontation, Jonathan saw defendant pass a revolver to another

member of the Latin Kings.

        Jonathan also testified that defendant suspected A.R.,2 a new member of

the Latin Kings, and J.D., a member of the Latin Queens, had been disloyal to

the Latin Kings. Jonathan heard defendant say that A.R. was a "goner" and

J.D. a "snitch." Later, defendant asked Jonathan to kill A.R., but he refused.

        Fernando Maestro testified he was the leader of the Ñetas gang in

Trenton in 2004. At that time, he was also romantically involved with J.D. At

one point, Maestro and defendant met to negotiate an end to the hostilities

between the Latin Kings and the Ñetas. Defendant proposed "taking care" of

A.R. if Maestro agreed to "take care" of J.D. Maestro testified that, among

gang members, the term "to take care of" means "to kill." Maestro refused to

agree to those terms because he did not want to hurt J.D.

        Maestro testified that, at a subsequent meeting between defendant and

Maestro, defendant stated he would "give up" A.R. to Maestro if Maestro

agreed to "take care of" him; Maestro consented to this arrangement. Later

that day, members of the Ñetas gang beat, but did not kill, A.R. Maestro

testified he did not want A.R. killed because A.R.'s brother was a member of

2
    We use initials to protect the identity of the victims and their families.


                                                                            A-1284-15T4
                                          4
the Ñetas. That evening, defendant called Maestro and confronted him about

why he did not "take care of" A.R. Defendant then stated he would "take care

of" A.R. in his own way.

      Roberto Rodriguez (Roberto), a member of the Latin Kings, testified

defendant was troubled by the fact Maestro and J.D. were involved in a

romantic relationship, and that defendant had ordered J.D. to "stop messing

with" Maestro. On the day A.R. was beaten up by Ñetas gang members,

defendant called a meeting of the local Latin Kings. Roberto testified that, at

that meeting, Esmeraldo Rodriguez (Esmeraldo) ordered Roberto to "get" A.R.

and to "hurt him." Roberto retorted he wanted to do the job alone, but

defendant then ordered that Roberto be accompanied by other members of the

Latin Kings, specifically, Esmeraldo, Joey Martinez and Rhadames Acosta.

Roberto acquiesced because defendant was the leader.

      Roberto stated that he, Martinez, Esmeraldo, and Acosta then drove to

A.R.'s home. Roberto overheard Esmeraldo talk to defendant on a cellphone.

Roberto heard defendant tell Esmeraldo to instruct Roberto to "take out" A.R.

After the call, Esmeraldo instructed Roberto to "take out" A.R. Roberto and

Esmeraldo then entered J.D.'s home and convinced A.R. to get into the car.

While there, Roberto took a piece of ribbon from the house to use to strangle


                                                                         A-1284-15T4
                                       5
A.R. At that time, A.R. was living in J.D.'s house; J.D. was present when A.R.

left the premises.

      Roberto testified that after A.R. was placed in the car, Martinez drove

the car around while Roberto strangled A.R. with the ribbon. A.R. fell

unconscious and Martinez stopped the car. After pulling him from the car,

Martinez determined A.R. was not breathing. Esmeraldo, Martinez and

Rhadames "stomped" on A.R.'s face to make sure he was dead and then threw

his body in a dumpster. When they got back into the car, Esmeraldo called

defendant and informed him "the job was done."

       Remarkably, A.R. survived the attack, and was spotted by the police

walking on the exit ramp of a nearby highway later that evening. The day after

the attack, defendant informed Roberto that A.R. was still alive. Defendant

also advised that J.D. had been killed, but defendant did not know who had

killed her.

      Acosta did not testify at trial but his testimony from the second trial was

read to the jury. His testimony of significance was that, as the local leader of

the Latin Kings, only defendant had the authority to order a person killed.

      Esmeraldo's testimony from the second trial was also read to the jury.

He testified he heard defendant order certain members of the Latin Kings to


                                                                        A-1284-15T4
                                       6
slash J.D. across her face, due to her perceived infidelity to the Latin Kings.

As for A.R., Esmeraldo's testimony about the attempted murder was materially

consistent with Roberto's. Esmeraldo added that he spoke with defendant right

after what he believed was the successful murder of A.R. During that

conversation, defendant learned J.D. was present when A.R. got into the car

with Martinez, Roberto, Esmeraldo and Acosta, to which defendant responded,

"We can't have nobody snitching on us."

      Joey Martinez's testimony from the second trial was read to the jury.

His testimony about A.R.'s attempted murder was essentially consistent with

Esmeraldo's, Roberto's, and Acosta's. Martinez added that after A.R.'s body

was thrown in the dumpster, Martinez and Esmeraldo met with defendant, who

asked, "Did everything go right with [A.R.], was it done?" Esmeraldo replied

in the affirmative. Later that evening, Martinez met with defendant, Josue

Maldonado, George Gomez, Angel Hernandez, and Maurice Young. At that

time, defendant ordered them to kill J.D., and Hernandez and Maldonado were

provided with guns.

      Martinez, Hernandez, Maldonado, Young, and Gomez then went to

J.D.'s house. Young, Hernandez, and Maldonado entered her home and,

approximately ten minutes later, Maldonado came out and told Gomez the gun


                                                                         A-1284-15T4
                                       7
did not work. Gomez "messed with [the gun] a little," and handed it back to

Maldonado, telling him the gun was working. Maldonado went back inside

with the gun and, a few minutes later, the three men emerged from J.D.'s house

and the five men then left the area.

                                       II

      On appeal, defendant asserts the following points for our consideration:

            POINT I: THE COURT'S DECISION TO ADMIT
            THE PRIOR TRIAL TESTIMONY OF ESMERALDO
            RODRIGUEZ AND JOEY MARTINEZ WITHOUT
            FIRST ORDERING THESE WITNESSES TO
            TESTIFY VIOLATED DEFENDANT'S RIGHT TO
            CONFRONTATION. (NOT RAISED BELOW).

            POINT II: DEFENDANT'S RIGHT TO
            CONFRONTATION WAS VIOLATED WHEN THE
            TRIAL COURT ADMITTED THE PRIOR TRIAL
            TESTIMONY OF ESMERALDO RODRIGUEZ
            WITHOUT REQUIRING THIS WITNESS TO
            APPEAR IN FRONT OF THE JURY. (NOT RAISED
            BELOW).

            POINT III: THE ADMISSION OF TESTIMONY
            INDICATING THAT THE DEFENDANT HAD
            POSSESSED A GUN, AFTER DEFENDANT HAD
            BEEN ACQUITTED OF POSSESSING A GUN IN
            THIS CASE, REQUIRED A MISTRIAL BECAUSE
            THE PREJUDICE TO THE DEFENDANT COULD
            NOT BE UNDONE BY A CURATIVE
            INSTRUCTION, PARTICULARLY SINCE THE
            CURATIVE INSTRUCTION WAS INADEQUATE.



                                                                      A-1284-15T4
                                       8
            POINT IV: THE TRIAL COURT ABUSED ITS
            DISCRETION IN SENTENCING DEFENDANT TO
            A LIFE TERM WITH AN 85% PERIOD OF PAROLE
            INELIGIBILITY AND A TWENTY-YEAR TERM
            WITH AN 85% PERIOD OF PAROLE
            INELIGIBILITY BECAUSE A PROPER ANAYLSIS
            OF THE AGGRAVATING FACTORS DOES NOT
            SUPPORT SUCH A SENTENCE.

            POINT V: UNDER STATE V. YARBOUGH, THE
            DEFENDANT SHOULD NOT HAVE RECEIVED
            FOUR CONSECUTIVE SENTENCES.

                                        A

      We turn first to the contention the court erred when it permitted Joey

Martinez's testimony from the second trial to be read to the jury. Some

background is in order. Before his testimony from the second trial was read

into the record, the State called Martinez as a witness, who briefly testified in

the presence of the jury. He stated he was a member of the Latin Kings in

2004, and that he pled guilty to conspiracy to commit murder in this matter,

for which he received a twelve-year sentence. He recalled testifying in a

"previous proceeding" but, because of the passage of time, did not remember

"much about the situation."

      The prosecutor showed Martinez a page from the transcript of the second

trial and inquired whether it refreshed his recollection. Martinez replied, "I



                                                                         A-1284-15T4
                                       9
don't remember any of this, Sir." When asked if he remembered giving "any of

this prior testimony," Martinez stated, "I don't remember any of that."

      The prosecutor requested and was granted a 104 hearing, see N.J.R.E.

104(a), and the jury was excused. Before the hearing started, the prosecutor

argued Martinez's assertion he could not recall the events surrounding

defendant's conviction was insincere, a contention the State wished "to clarify"

during the 104 hearing. The prosecutor requested that Martinez's testimony

from the second trial be read to the jury in the event he continued to "feign

recollection to the point where he becomes an absent witness or at least a

witness that does not answer questions as directed by the court."

      At the outset of his testimony at the 104 hearing, Martinez

acknowledged testifying at the second trial, and even commented his testimony

at that trial was truthful because he never commits perjury. Most of the

hearing was comprised of the prosecutor showing Martinez certain questions

he had asked Martinez during the second trial, and inquiring whether Martinez

recalled such questions and the specific responses he provided. Martinez was

unable to recall any specific question posed or the particular answer he gave to

any particular question.




                                                                          A-1284-15T4
                                     10
      It is not clear how Martinez's inability to recall a specific question and

answer was probative, given Martinez's recollection of the subject matter of

his prior testimony was what was relevant. In any event, when pressed by

defense counsel whether Martinez met with the prosecutor to prepare for

testifying at trial, Martinez stated he did not meet with the prosecutor because:

            [I]t was a long time ago, I don't remember. I don't
            want to waste my time or the State's time . . . .

            [I]t was a long time ago, you know, through
            everything that happened while I was in prison and
            everything like that. I just blocked it out, it's my past.
            I don't remember[.] I'm not going to sit here and say
            that I remember things that I don't. I don't remember.

      At the conclusion of the 104 hearing, the State requested Martinez's

testimony from the second trial be read to the jury, on the ground it was prior

testimony and Martinez was an unavailable witness. Defendant opposed the

admission of such testimony, arguing to do so would violate his rights under

the Confrontation Clause of both the federal and state constitutions, see U.S.

CONST. amend. VI, N.J. Const. art. I, ¶ 10, because he would be precluded

from cross-examining Martinez. Defendant conceded Martinez was cross-

examined by his previous attorney during the second trial.

      The trial court initially found Martinez did not have a recollection of the

subject matter of his prior testimony and, therefore, was an unavailable witness

                                                                         A-1284-15T4
                                      11
pursuant to N.J.R.E. 804(a)(3). This Rule provides that a witness is

"unavailable" if he "testifies to a lack of memory of the subject matter of the

statement." N.J.R.E. 804(b)(1)(A) states, in pertinent part, that if a declarant is

unavailable, the testimony he gave at a prior trial is not hearsay and is

admissible if the party against whom the testimony was offered had the

opportunity and a similar motive in the prior trial to cross-examine the witness.

        Despite finding Martinez was unable to recall the subject matter of his

prior testimony, the court then determined it implausible Martinez could not

recall the facts of this case, and concluded Martinez feigned his lack of

recollection. However, the court did not change its prior ruling that Martinez

was unavailable as a witness pursuant to N.J.R.E. 804(a)(3).

        After issuing its ruling, the trial court stated Martinez would be recalled

to the witness stand after the jury returned to the courtroom, so that the State

could conclude its direct examination or, if it had no questions, defendant

could cross-examine Martinez. Defendant objected to that procedure, arguing

there was no point in cross-examining Martinez, given the court had ruled he

was unavailable as a witness and that his prior testimony would be read to the

jury.




                                                                            A-1284-15T4
                                        12
      The court reiterated defendant had the right to cross-examine the witness

at that time. Defendant declined and requested the witness not be recalled to

the stand. Ultimately, both parties agreed that Martinez would not be recalled.

When the jury returned to the court room, the court advised it the State had

withdrawn Martinez as a witness and the jury was not to consider any of the

testimony he had provided to that point. Martinez's prior testimony was

subsequently read to the jury.

      As stated, the court found defendant an unavailable witness pursuant to

N.J.R.E. 804(a)(3). On appeal, defendant does not expressly challenge the

court's finding Martinez was unavailable pursuant to the latter subsection, but

does so implicitly. He argues Martinez's feigned loss of memory was

tantamount to refusing to testify, triggering the application of N.J.R.E.

804(a)(2). The latter subsection provides that a declarant is unavailable if he

"persists in refusing to testify concerning the subject matter of the statement

despite an order of the court to do so[.]" Ibid. Defendant maintains the court

should have ordered Martinez to testify pursuant to N.J.R.E. 804(a)(2) and

found him unavailable as a witness only if he still refused to testify. Because

the court did not follow the strictures of N.J.R.E. 804(a)(2), it is defendant's




                                                                          A-1284-15T4
                                      13
position the admission of Martinez's prior testimony violated his rights under

the Confrontation Clause.

      Defendant does not dispute the conditions of N.J.R.E. 804(b)(1)(A) were

met. As stated, this subsection states that testimony in a prior trial is not

excluded by the hearsay rule if the declarant is unavailable as a witness, and

the party against whom the testimony is offered had an opportunity and similar

motive in the prior trial to develop the testimony by examination or cross -

examination.

      The Sixth Amendment to the United States Constitution and Article I,

paragraph 10 of the New Jersey Constitution guarantee that the accused in a

criminal case has the right to confront the witnesses against him. The right to

confrontation applies to out-of-court statements that are "testimonial." There

is no question prior trial testimony is testimonial. Crawford v. Washington,

541 U.S. 36, 68 (2004).

       In Crawford, the United States Supreme Court held the admission of

out-of-court testimonial statements is unconstitutional, "unless the person who

made the statement is unavailable to testify at trial and the defendant had a

prior opportunity to cross-examine that person." State ex rel. J.A., 195 N.J.

324, 328 (2008) (emphasis supplied). "Our decisions have followed [the


                                                                          A-1284-15T4
                                       14
Crawford] analysis in confrontation cases arising post-Crawford." State v.

Roach, 219 N.J. 58, 74 (2014).

      As stated, in relevant part N.J.R.E. 804(a)(3) provides:

            (a) [A] declarant is "unavailable" as a witness if
            declarant:

                  ....

            (3) testifies to a lack of memory of the subject matter
            of the statement[.]

The "statement" at issue is Martinez's testimony from the second trial.

      "We interpret an evidence rule, as we would a statute, by first looking at

its plain language." J.A., 195 at 338 (citing United States v. Am. Tel. & Tel.

Co., 498 F.Supp. 353, 356-58 (D.D.C. 1980)). We give "the terms used . . .

their ordinary and accepted meaning." State v. Shelley, 205 N.J. 320, 323

(2011). Here, the language in N.J.R.E. 804(a)(3) is clear on its face and we

need not look any further to ascertain its meaning. This provision states that if

a declarant testifies to a lack of memory of the subject matter of the statement,

he is an unavailable witness.

      Although the trial court in this matter opted to do so, N.J.R.E. 804(a)(3)

does not require a court to make a factual determination whether a witness in

fact recalls his prior statement or testimony. The subject language does not


                                                                          A-1284-15T4
                                      15
state or imply in any way that the veracity of a declarant's claim he lacks

memory of the subject matter of a statement must be established as genuine

before he can be deemed unavailable as a witness. Further, defendant did not

cite and we were unable to find any authority for such a premise.

      Therefore, we reject the contention Martinez's feigned memory loss

implicated and compelled the court to utilize N.J.R.E. 804(a)(2) when

determining if Martinez was an unavailable witness. There was no violation of

the Confrontation Clause because, before the prior testimony was admitted, the

trial court properly determined Martinez was an unavailable witness pursuant

to N.J.R.E. 804(a)(3), and it is not disputed defendant had an opportunity to

cross-examine Martinez when he testified at the second trial. See N.J.R.E.

804(b)(1)(A); J.A., 195 N.J. at 328 (2008).

                                         B

      During trial, the prosecutor advised the court that "[w]e were hopeful

that [Esmeraldo] would testify but apparently he will not testify, at least that 's

what he says at this point." The prosecutor subsequently clarified that

Esmeraldo did not "unequivocally" say he would not testify and, in fact, stated

he would testify to what he remembered.




                                                                          A-1284-15T4
                                       16
       In any event, the prosecutor requested a 104 hearing to determine

Esmeraldo's availability pursuant to N.J.R.E. 804(a). The State did not call

Esmeraldo as a witness before the jury, merely as a witness at the 104 hearing.

During that hearing, Esmeraldo stated he did not remember what happened to

either J.D. or to A.R., and did not recall ever having a conversation with

defendant about A.R. Esmeraldo did not dispute he was convicted of

attempted murder, but he did not remember pleading guilty to this crime or

why he was even charged and convicted of this particular offense.

      At the conclusion of the hearing, the State requested that Esmeraldo's

prior testimony be admitted "under 804 . . . as unavailable." The court did not

refer to any specific provision in N.J.R.E. 804(a), but it is implicit the court

determined Esmeraldo was an unavailable witness pursuant to N.J.R.E.

804(a)(3). The court stated Esmeraldo was "unavailable simply because he's

testified that he has no recall." However, the court did add that "his lack of

memory was invented for purposes of this hearing." Defendant did not

question Esmeraldo at the hearing or call him as a witness at trial.

      As he did with respect to the admission of Martinez's prior testimony, on

appeal defendant argues the court should have evaluated Esmeraldo's

unavailability as a witness through the lens of N.J.R.E. 804(a)(2), not N.J.R.E.


                                                                          A-1284-15T4
                                       17
804(a)(3). For the reasons we rejected such argument when considering

whether the court erred by finding Martinez unavailable pursuant to N.J.R.E.

804(a)(3), we similarly conclude the court did not err when it found Esmeraldo

unavailable for the same reason. Esmeraldo testified to a lack of memory

concerning the subject matter of his prior statement. Therefore, he was an

unavailable witness pursuant to N.J.R.E. 804(a)(3). Whether Esmeraldo could

in fact recall the subject events is irrelevant for the purpose of deter mining his

unavailability as a witness under N.J.R.E. 804(a)(3). Esmeraldo's prior

testimony was not excluded by the hearsay rule because it met the conditions

set forth in N.J.R.E. 804(b)(1)(A).

      For the first time on appeal, defendant contends the trial court erred

because it, as opposed to the jury, determined Esmeraldo was feigning memory

loss. Defendant argues the jury should have decided whether this witness's

memory loss was genuine. We reject this argument as wholly without merit.

      First, the court, not the jury, determines the admissibility of evidence .

See N.J.R.E. 104(a). The court determines whether a witness is unavailable

pursuant to N.J.S.A. 804(a). Second, as previously discussed, the language in

N.J.R.E. 804(a)(3) does not mandate that a court, let alone a jury, make a

factual determination whether a witness's claim he lacks memory of the subject


                                                                          A-1284-15T4
                                       18
matter of a statement is valid. The fact the trial court did so in this in stance is

beside the point. The cases defendant cites in his brief are inapposite and thus

do not support his position. Further discussion on this particular contention is

not warranted. R. 2:11-3(e)(2).

                                         C

      As previously noted, there was testimony that, just before members of

the Latin Kings and Ñetas arrived at the park for the planned confrontation,

defendant gave a revolver to a member of the Latin Kings. Immediately after

that testimony was rendered, defendant objected and moved for a mistrial.

Defendant argued the testimony was prejudicial in light of the fact that, at the

conclusion of the second trial, he had been acquitted of possession of a weapon

for an unlawful purpose and unlawful possession of a handgun. 3 Defendant

stated he had "no objection to at least a qualified objection referencing the

guns that were used to kill [J.D][,]" but objected to any reference defendant

possessed guns. The court denied the motion and immediately gave the jury

the following instruction:

3
   The indictment alleged defendant possessed handguns for the purpose of
unlawfully using them against J.D., and that he was in unlawful possession of
those weapons because he did not have a permit.




                                                                           A-1284-15T4
                                       19
             Ladies and gentlemen, just to be clear, Mr. Negrete is
             not charged with any weapons related offenses. So
             any testimony that you hear during the course of this
             trial if there's any to be heard, I don't know what's
             going to be said, okay, with regards to anybody – with
             regards to any weapons, their use, their possession,
             none of it should be considered with regards to Mr.
             Negrete at least when you're determining whether or
             not – what your verdict should be with regards to the
             conspiracy, attempted murder and the murder charge.
             He's not charged with weapons offenses. Any
             references to weapons are not to be considered to him.
             And you have to follow that instruction from now
             until the end of this trial and even during your
             deliberations.

      On appeal, defendant argues evidence of an offense for which a

defendant has been acquitted cannot be admitted at trial and, if it is, the only

remedy is to declare a mistrial. At the least, he contends, the testimony

referencing the revolver, which he claims tainted the jury against him, shou ld

have been stricken. If not stricken, he claims the instruction to the jury should

have explained the evidence was admissible for only a specific purpose.

Finally, he contends N.J.R.E. 404(b) precluded the admission of the subject

testimony.

      We address the denial of defendant's motion for a mistrial. "The grant of

a mistrial is an extraordinary remedy to be exercised only when necessary 'to

prevent an obvious failure of justice.'" State v. Yough, 208 N.J. 385, 397,


                                                                         A-1284-15T4
                                      20
(2011) (quoting State v. Harvey, 151 N.J. 117, 205 (1997)). Thus, an appellate

court should not reverse a denial of a mistrial motion without a clear showing

of actual harm or abuse of discretion. Ibid. (citing State v. Labrutto, 114 N.J.

187, 207 (1989)). In particular, "when inadmissible evidence erroneously

comes before the jury, an appellate court should not order a new trial unless

the error was clearly capable of producing an unjust result." Ibid. (citing R.

2:10-2; State v. Frisby, 174 N.J. 583, 591 (2002)) (internal quotation marks

omitted).

      Here, we reject the contention the trial court erred when it denied

defendant's motion for a mistrial, or otherwise permitted the admission of this

evidence. Even if the admission of this testimony were erroneous and

constituted improper "other crimes" evidence inadmissible under N.J.R.E.

404(b), State v. Cofield, 127 N.J. 328, 336 (1992), we are satisfied the error

was harmless. Evidence defendant held a gun in his hand and turned it over to

another was, under these specific facts, utterly innocuous, given the

overwhelming evidence defendant was guilty of murder and attempted murder.

See, e.g., State v. Sowell, 213 N.J. 89, 107-08 (2013) (affirming conviction

given strength of evidence against defendant despite admission of improper

expert testimony).


                                                                        A-1284-15T4
                                      21
                                       D

      Defendant argues his sentence is unjustified because the court placed too

much weight on aggravating factors three, six and nine, and used "as a basis

for all three of them the disturbing circumstances of the offenses for which

defendant was convicted." He also complains the court "should have provided

a more precise, more detailed statement of reasons" to justify its imposition of

a life sentence. Finally, he contends the court did not properly consider the

factors in State v. Yarbough, 100 N.J. 627, 643-44 (1985), when it ordered the

sentence for attempted murder be served consecutively to the sentence for

murder.

      The court found the following aggravating factors: three, N.J.S.A.

2C:44-1(a)(3) (the risk the defendant will reoffend); five, N.J.S.A. 2C:44-

1(a)(5) (there is a substantial likelihood the defendant was involved in

organized criminal activity); six, N.J.S.A. 2C:44-1(a)(6) (the defendant's prior

criminal record); and nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter). The

court did not find any mitigating factors. See N.J.S.A. 2C:44-1(b)(1) to (13).

      Specifically, the court found defendant, who was thirty-three years of

age at the time of sentencing, was at risk of reoffending because of his

criminal history. According to the pre-sentence report, before committing the


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                                     22
instant offenses, defendant had been adjudicated a delinquent six times and

convicted as an adult of third-degree unlawful possession of a weapon. The

court found aggravating factor five applied because there was undisputed

testimony defendant was not only a member of the Latin Kings, but also the

leader of its Trenton "Chapter." The court determined aggravating factor six

applied based on defendant's juvenile adjudications and prior criminal

conviction. Finally, the court found aggravating factor nine because of the

need to deter.

      As for imposing a consecutive sentence, the court stated:

            Should the defendant be released on parole, the
            sentence[] imposed [for attempted murder] is to be
            served consecutively to the sentence imposed [for
            murder,] [f]or the mere reason that two lives [were]
            destroyed, two families [were] destroyed, [and the]
            destruction is permanent without any hope of repair.

      We note that "[a]ppellate review of the length of a sentence is limited."

State v. Miller, 205 N.J. 109, 127 (2011). As the Court has reiterated:

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


                                                                          A-1284-15T4
                                     23
            [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
            original) (quoting State v. Roth, 95 N.J. 334, 364-65
            (1984)).]

Here, although its comments were brief, the court adequately explained its

findings regarding the aggravating sentencing factors, and we find no basis to

disturb them.

      As for the court's imposition of a consecutive sentence, our Supreme

Court has made clear that when imposing consecutive sentences, a court must

carefully weigh the Yarbough factors. See State v. Miller, 108 N.J. 112, 122

(1987). Those factors are:

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

            (2) the reasons for imposing either a consecutive or
            concurrent sentence should be separately stated in the
            sentencing decision;

            (3) some reasons to be considered by the sentencing
            court should include facts relating to the crimes,
            including whether or not:

                  (a) the crimes and their objectives were
                  predominantly independent of each other;

                  (b) the crimes involved separate acts of
                  violence or threats of violence;

                  (c) the crimes were committed at
                  different times or separate places, rather
                  than being committed so closely in time

                                                                       A-1284-15T4
                                     24
                  and place as to indicate a single period of
                  aberrant behavior;

                  (d) any of the crimes involved multiple
                  victims;

                  (e) the convictions for which the
                  sentences are to be imposed are numerous;

            (4) there should be no double counting of aggravating
            factors;

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

            (6) there should be an overall outer limit on the
            cumulation of consecutive sentences for multiple
            offenses not to exceed the sum of the longest terms
            (including an extended term, if eligible) that could be
            imposed for the two most serious offenses. [4]

            [State v. Yarbough, 100 N.J. 643-44 (1985) (footnotes
            omitted).]

      We are satisfied that the record fully supports the court's imposition of

consecutive sentences. Although the court did not expressly articulate its


4
  In 1993, the Legislature amended N.J.S.A. 2C:44-5(a) to provide that
"[t]here shall be no overall outer limit on the cumulation of consecutive
sentences," thereby eliminating guideline number six. L. 1993, c. 223, § 1; see
also State v. Eisenman, 153 N.J. 462, 478 (1998) (recognizing supersedence).




                                                                        A-1284-15T4
                                     25
reasons for imposing consecutive sentences, they are consistent with the

Yarbough factors. Ibid. "There can be no free crimes, and separate crimes

ordinarily deserve separate punishment." State v. Johnson, 309 N.J. Super.

237, 271 (App. Div. 1998). Here, the murder and attempted murder were

separate and distinct crimes, committed at different times and in different

places, and their objectives were predominately independent of each other.

Yarbough, 100 N.J. at 643-44.

      Affirmed.




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