                                NOT FOR PUBLICATION WITHOUT THE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-2874-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARK BROWNE, a/k/a
MICHAEL BROWNE, CHRIS
C. BROWN, MARK BROWN,
CHRISTOPHER M. BROWN,
and CHRISTOPHER COLLINS,

     Defendant-Appellant.
____________________________

                   Submitted March 26, 2019 – Decided July 24, 2019

                   Before Judges Fisher and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 13-08-1529.

                   Law Offices of Ferro & Ferro, attorneys for appellant
                   (Nancy C. Ferro, on the brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Stephanie Davis Elson, Assistant
                   Prosecutor, on the brief).
            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant Mark Brown appeals his conviction by a jury of the lesser-

included offense of manslaughter, N.J.S.A. 2C:11-4(b)(1), and his sentence as a

persistent offender to an extended term of eighteen years in prison with an

eighty-five percent period of parole ineligibility. He argues the trial court erred

by not allowing testimony from an alibi witness or about a 911 call, and that the

jury charge about flight from prosecution should not have been given.

Defendant also argues the court made errors in sentencing. He contends that the

sentence was excessive, he should not have received an extended term and the

trial court should have found mitigating factor twelve. We have considered

defendant's arguments. We affirm defendant's conviction and sentence.

                                      I

      Following up on a 911 call, the North Bergen police found the dead body

of a man near the intersection of a major highway, later identified through his

fingerprints as Darryl Williams. A detective testified that the hands of the victim

were bound by a belt, duct tape, and cell phone charger cord. His head was

encased in a bloody pillowcase. A rope was around his neck and his mouth was

taped shut with duct tape. According to the detective, it appeared the victim had


                                                                           A-2874-16T2
                                          2
crawled away from underneath a mattress that was loaded on top with

cinderblocks; the mattress had blood on it and there was a trail of blood leading

from the mattress to the body. A U-Haul truck that also had blood on it was

parked near the mattress.

      An assistant medical examiner testified the victim died from "asphyxia

due to obstruction of [the] airway with multiple blunt and sharp -force injuries."

The autopsy showed cuts and bruising to his forehead, eyelids, ears, and lips; a

hemorrhage in the white of his left eye; chipped teeth; a hemorrhage of the

tongue; and contusions to his chest, sides and back. He had six broken ribs.

One arm was completely bruised from the shoulder to the elbow. He had injuries

to his hands consistent with defensive wounds. He had been cut or stabbed

twenty-three times in the head, back, shoulders, arms and feet.

      The victim lived in Newark with his girlfriend, Latoya Mozee. Another

detective testified that the police search of her apartment showed bloodstains in

the bedroom, stairs and landing. A metal leg was missing from the kitchen table.

Kitchen knives were missing.

      Qudeera Adams testified at trial that she learned Latoya Mozee had been

beaten up by her boyfriend Darryl Williams. Latoya's injuries were visible.

When defendant became aware of this, he said "he was going to knock [Darryl]


                                                                          A-2874-16T2
                                        3
out and teach him a lesson not to hit girls." Adams testified that defendant drove

her and Nydia Mozee (Latoya's sister) to buy duct tape. Defendant had a BB

gun in the back of his white Cadillac Escalade. They picked up Kathleen Jones

and then Daeshawn Jennings, known as "Certified." Defendant paid Certified

twenty dollars to "knock out" Darryl.

      Adams testified that defendant drove the group to Latoya's apartment;

Darryl was there. Certified beat him with the metal table leg; defendant tied up

Darryl's head, taped his mouth shut and put a pillowcase over his head. They

all beat him. When Darryl stopped moving, Adams testified that defendant

wrapped him in a blanket and carried him out to the Escalade. Defendant drove

them to the U-Haul lot where defendant and Certified deposited Darryl. Adams

testified that defendant told the group not to mention any of this to anyone.

Defendant drove the group to purchase cleaning supplies. Videotaped evidence

showed defendant and Latoya Mozee at a Pathmark store at 2:14 a.m.

      Defendant gave a different version of the events. Defendant testified that

he was not driving the Escalade on the night of the assault. He worked for a car

dealer and earlier that day, he and another employee (co-worker) went to South

Jersey in the Escalade to pick up a car. After they brought that back, defendant

switched to driving a black sedan while his co-worker kept the Escalade.


                                                                          A-2874-16T2
                                        4
Defendant was driving the black sedan when—after stopping to pick up Adams

and another woman and purchasing some food at the Pathmark—he went to

Latoya's apartment for a "gathering." He acknowledged learning that same day

that Darryl had beaten up Latoya. Defendant testified that after he used the

bathroom at Latoya's, he came out to "madness" because a fight had broken out.

He claimed that Darryl had beaten Latoya for a second time that night. He saw

Latoya, his co-worker and others beating Darryl and said he tried to stop it. He

testified that he did assist in holding down Darryl with "six other people in the

room" but this was to "get him calmed down and stop everyone from hitting

him." Someone put Darryl in a blanket and loaded him in the Escalade. There

was blood coming from the blanket and defendant assumed they were taking

him to the hospital because somebody mentioned that.

      In the early morning, defendant went over to Sharo Willis' house in the

black sedan, not the Escalade. Shortly after, Nydia called him because she did

not have money to buy cleaning supplies. He met her and others at a Pathmark.

He left there for another friend's house and then took a cab to visit another friend.

      Later that day, defendant was driving the Escalade when he was stopped

by the police for a traffic violation. The car was impounded for ten days. He

retrieved it and then sold it in Virginia.


                                                                             A-2874-16T2
                                         5
      Defendant was indicted 1 for first-degree murder, N.J.S.A. 2C:11-3(a)(1)

or N.J.S.A. 2C:11-3(a)(2) (count one); and third-degree endangering an injured

victim, N.J.S.A. 2C:12-1.2 (count two). A jury convicted him of the lesser

included offense of manslaughter, N.J.S.A. 2C:11-4(b)(1). The State dismissed

the second count of the indictment.

      Prior to sentencing, the trial court granted the State's motion under

N.J.S.A. 2C:44-3(a) to sentence defendant to a discretionary extended term as a

persistent offender. On December 22, 2016, he was sentenced to an eighteen-

year term of incarceration with an eighty-five percent period of parole

ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

      On appeal, defendant challenges two evidence rulings, a portion of the

jury charge and his sentence by raising the following issues:

            POINT ONE:
            THE TRIAL COURT ERRED BY PRESENTING THE
            FLIGHT CHARGE TO THE JURY OVER THE
            OBJECTION OF DEFENSE COUNSEL.

            POINT TWO:
            THE TRIAL COURT ERRED IN REFUSING TO
            PERMIT A DEFENSE (ALIBI) WITNESS TO
            TESTIFY.


1
 The indictment also included Latoya Mozee, Qudeera Adams, Nydia Mozee,
Daeshawn Jennings and Kathleen Jones.


                                                                       A-2874-16T2
                                       6
            POINT THREE:
            THE COURT ERRED IN REFUSING TO ALLOW
            TESTIMONY ABOUT THE 911 CALL ON
            DECEMBER     30, 2012 REGARDING   THE
            DOMESTIC VIOLENCE.

            POINT FOUR:
            THE TRIAL COURT ERRED BY IGNORING
            STRONG      MITIGATING   FACTORS IN
            DEFENDANT'S FAVOR AT SENTENCING.

            POINT FIVE:
            THE COURT ERRED IN IMPOSING A
            DISCRETIONARY    EXTENDED     SENTENCE
            UNDER THE FACTS OF THIS CASE.

            POINT SIX:
            THE SENTENCE WAS EXCESSIVE AND THE
            COURT      ERRED   BY   IMPOSING   A
            DISCRETIONARY    EXTENDED   SENTENCE
            BECAUSE THE STATUTORY REQUIREMENTS
            WERE NOT MET.

      We granted defendant's motion to file a supplemental brief.2 He raises the

additional argument that:

            POINT I

            EVEN IF ANY ONE OF THE COMPLAINED-OF-
            ERRORS WOULD BE INSUFFICIENT TO
            WARRANT REVERSAL OF THE CONVICTION
            THE CUMULATIVE EFFECT OF THOSE ERRORS
            WAS TO DENY DEFENDANT DUE PROCESS AND
            A FAIR TRIAL.

2
  On August 21, 2018, we granted defendant's motion to supplement the record
on appeal to include additional documents and a certification from defendant.
                                                                        A-2874-16T2
                                       7
                                      II

                                      A

        Defendant argues the trial court erred by not permitting him to call Sharo

Willis as a witness. Defendant claims her testimony would have provided him

with an alibi for the time period when the victim was being abandoned near the

U-Haul. She was expected to testify defendant was at her house during that

time.

        We review a trial court's evidential rulings for abuse of discretion.

Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We give "[c]onsiderable latitude" to

the trial court "in determining whether to admit evidence and that determination

will be reversed only if it constitutes an abuse of discretion." State v. Feaster,

156 N.J. 1, 82 (1998). Under this standard, we will not substitute our own

judgment for that of the trial court, unless "the trial court's ruling 'was so wide

of the mark that a manifest denial of justice resulted.'" State v. Marrero, 148

N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

        The State rested its case on September 22, 2016, subject to rebuttal.

Defendant raised this alibi issue for the first time on September 28, 2016. Willis'

name had not been given to the State as a witness. The defense previously

advised the State that it would not be calling alibi witnesses. Defense counsel


                                                                           A-2874-16T2
                                           8
explained to the court that he recently gained Willis' cooperation for an

interview, and now was requesting to call her as a witness. The State opposed

the request.

      The trial court denied the application because "in week four of the trial,

there's now a partial alibi witness whose name was not on the witness list, no

information regarding the woman has been furnished to the State . . . ." The

court found that there was prejudice to defendant but "greater prejudice" to the

State because it was deprived of the opportunity to interview the witness, speak

with her or present its case knowing there was an alibi witness. Defendant had

the opportunity to provide notice of the alibi consistent with the Rules. The

court would not impose a less severe sanction because the jury had been

empaneled for four weeks, there were issues about losing two jurors and only

two alternates remained. The court found the failure to comply with the Rules

was willful and intended by the defense to gain an advantage. The defense had

two opportunities to name alibi witnesses and had not done so.

      Under Rule 3:12-2(a), defendant was to provide notice to the State if he

"intend[ed] to rely in any way on an alibi . . . ." Defendant contends that Willis

is a fact witness, but it was clear he intended to offer her as an alibi witness to




                                                                           A-2874-16T2
                                        9
explain that defendant was not present when the victim was abandoned at the U-

Haul lot. The Rule expressly applies to any potential alibi testimony.

       Where part "a" of the Rule is violated, part "b" permits the trial court to

"refuse to allow the party in default to present witnesses at trial as to defendant's

absence from or presence at the scene of the alleged offense" or the court can

adjourn or delay the trial "as the interest of justice requires." R. 3: 12-2(b). In

applying part "b," a trial court is to consider:

             (1) the prejudice to the State;

             (2) the prejudice to the defendant;

             (3) whether other less severe sanctions are available to
             preserve the policy of the rule, such as a continuance or
             a mistrial to permit the State to investigate the alibi; and

             (4) whether the defendant's failure to give notice was
             willful and intended to gain a tactical advantage.

             [State v. Bradshaw, 195 N.J. 493, 507-08 (2008).]

      Although defendant argues that Bradshaw should not apply because the

alibi did not relate to the time period when the victim was being assaulted, this

is wrong because the Rule applies where defendant "intend[ed] to rely in any




                                                                             A-2874-16T2
                                         10
way on an alibi . . . ." R. 3:12-2(a).3 The trial court considered all of the

Bradshaw factors. It did not abuse its discretion by denying the defendant's

request.

      We also reject defendant's claim that the trial court should have permitted

the jury to hear a 911 call made six hours before the victim was beaten. The

defense proffered that the call came from a neighbor of Latoya's, who heard and

then reported that a male was beating a female. The trial court denied its

admission on the ground the phone call lacked relevance.

      Defendant argues the call was relevant so the jury could separate

defendant from the other co-defendants. He contends it would corroborate that

he entered into a situation where others already were "inflamed" about Latoya's

beating and that it was probative of his state of mind.

      We agree with the trial judge that the call made six hours earlier about the

victim's alleged domestic violence against Latoya, which did not involve

defendant, did not have a "tendency in reason to prove or disprove any fact of

consequence to the determination of the action." State v. Scharf, 225 N.J. 547,


3
  In the reply brief, defendant urges us to find that exclusion of this witness was
unconstitutional under the Sixth Amendment. We decline to address this
argument. See State v. Lenihan, 427 N.J. Super. 499, 504 n. 2 (App. Div. 2012)
("Rule 2:6-5 precludes the use of a reply brief to add issues not previously raised
in the formal brief.").
                                                                           A-2874-16T2
                                       11
568-69 (2016) (quoting N.J.R.E. 401). In determining relevance, "the inquiry

should focus on the logical connection between the proffered evidence and a

fact in issue." State v. Cole, 229 N.J. 430, 447 (2017) (quoting State v. Bakka,

176 N.J. 533, 545 (2003)). As noted by the trial court, the call did not tend "to

prove or disprove the intent that [defendant] may or may not have had—or the

knowledge he may or may not have had six hours later when [the victim was

killed]." The court did not abuse its discretion by excluding this 911 call from

the jury.

                                     B

      Defendant argues the trial court erred by instructing the jury about flight

from prosecution. He contends the State's reason for requesting that charge was

flawed, that he had a legitimate reason to be in Virginia because he wanted to

sell the Escalade, and that it was prejudicial to give this charge because it

inferred that he demonstrated consciousness of guilt.

      "[A]ppropriate and proper [jury] charges are essential for a fair trial."

State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J.

553, 613 (2004)). In reviewing the adequacy of the judge's charge to the jury,

we must consider the charge as a whole in determining whether it was




                                                                         A-2874-16T2
                                      12
prejudicial. State v. Figueroa, 190 N.J. 219, 246 (2007) (citing State v. Wilbely,

63 N.J. 420, 422 (1973)).

      Flight "may be evidential of consciousness of guilt, provided the flight

pertains to the crime charged." State v. Randolph, 228 N.J. 566, 594 (2017). A

jury instruction on flight requires the jury to first find that there was a departure

and then to find the motive for the departure was an attempt to avoid arrest or

prosecution on the charged offense. State v. Mann, 132 N.J. 410, 421 (1993)

(citing State v. Wilson, 57 N.J. 39, 49 (1970)). "For departure to take on the

legal significance of flight, there must be circumstances present and

unexplained, which, in conjunction with the leaving, reasonably justify an

inference that it was done with a consciousness of guilt and pursuant to an effort

to avoid accusation based on that guilt." State v. Ingram, 196 N.J. 23, 46 (2008)

(quoting Mann, 132 N.J. at 418-19).

      The court instructed the jury as follows:

             THE COURT: There has been some testimony in the
             case from which you may infer the defendant fled
             shortly after the alleged commission of the crime. The
             defense has suggested the following explanation: that
             the defendant went to Virginia for the preplanned
             purpose of selling the white Escalade. If you find the
             defendant's explanation credible, you should not draw
             any inference of the defendant's consciousness of guilt
             from the defendant's departure. If, after a consideration
             of all the evidence, you find the defendant fearing that

                                                                             A-2874-16T2
                                        13
             an accusation or arrest would be made against him on
             the charge involving the indictment, took refuge and
             flight for the purpose of evading the accusation or
             arrest, then you may consider such flight in connection
             with all the evidence in the case as indication or proof
             of a consciousness of guilt. It is for you, as judges of
             the facts, to decide whether or not evidence of flight
             shows a consciousness of guilt and the weight to be
             given such evidence in light of all the other evidence in
             the case.

      We disagree with defendant's argument that the charge was not supported

by the evidence. By January 4, 2013, the police wanted to speak with defendant

about Darryl's death. Although the Escalade was impounded from December 31

to January 9, 2013, a letter dated January 7, 2013, purported to authorize

defendant to sell the vehicle. Defendant then went to Virginia and sold the

vehicle, but he claimed it was because he could get more money for it there than

in New Jersey. The State claimed that he sold the vehicle in Virginia to avoid

prosecution.    The timing of the events could fit the State's explanation.

Therefore, it was not the instruction that was prejudicial to defendant; it was the

evidence—if the jury rejected defendant's explanation for selling the car in

Virginia. The trial court did not err by including the flight from prosecution

instruction in the jury's charge.




                                                                           A-2874-16T2
                                       14
                                       C

        At sentencing, the court found aggravating factors one, three, six and

nine,4 but no mitigating factors. Defendant argues the trial court should have

found mitigating factor twelve ("[t]he willingness of the defendant to cooperate

with law enforcement authorities."). N.J.S.A. 2C:44-1(b)(12). He claims he

was "peripherally involved as a confidential informant" in providing

information about a gang and that he provided information about a plot to kill

an FBI agent and another plot to kill the wife of the judge conducting his

criminal trial. Had the court found mitigating factor twelve, he implies his

sentence would have been shorter.

        Our review of a sentencing determination is limited. See State v. Roth,

95 N.J. 334, 364-65 (1984). We review a judge's sentencing decision under an

abuse of discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014). We must

determine whether:

              (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."


4
    N.J.S.A. 2C:44-1(a)(1), (3), (6) and (9).
                                                                         A-2874-16T2
                                        15
            [Ibid. (alterations in original) (quoting Roth, 95 N.J. at
            364-65).]

      Defendant advised the court about his claimed cooperation, but in finding

the absence of mitigating factors, the court clearly did not give weight to that

information. The record shows that the court carefully considered the competent

and credible evidence, including evidence about the injuries inflicted on the

victim, defendant's criminal history and the need to deter future conduct of this

nature in evaluating the aggravating and mitigating factors. We have no grounds

to disagree with the trial court's considered analysis of these factors and discern

no abuse of the court's discretion.

                                      D

      Defendant argues that the court erred by sentencing him to an extended

sentence as a persistent offender under N.J.S.A. 2C:44-3(a). Although he was

convicted of the lesser-included offense of manslaughter, defendant claims the

extended sentence was an attempt by the judge to "correct the jury's actual

verdict by imposing a discretionary extended sentence more in line with a first[-

]degree crime." He also claims that the crimes used as the basis for finding him

to be a persistent offender did not satisfy N.J.S.A. 2C:44-3(a).

      In evaluating whether to impose an extended sentence, State v. Dunbar,

108 N.J. 80, 89 (1987), requires a "multi-step process."

                                                                           A-2874-16T2
                                       16
            First, the sentencing court must determine whether the
            minimum statutory predicates for subjecting the
            defendant to an extended term have been met. Second,
            the court must determine whether to impose an
            extended sentence. Third, it must weigh the aggravating
            and mitigating circumstances to determine the base
            term of the extended sentence. Finally, it must
            determine whether to impose a period of parole
            ineligibility.

            [Ibid.]

      A persistent offender is defined as:

            a person who at the time of the commission of the crime
            is 21 years of age or over, who has been previously
            convicted on at least two separate occasions of two
            crimes, committed at different times, when he was at
            least 18 years of age, if the latest in time of these crimes
            or the date of the defendant's last release from
            confinement, whichever is later, is within 10 years of
            the date of the crime for which the defendant is being
            sentenced.

            [N.J.S.A. 2C:44-3(a).]

      The court applied the four requirements under Dunbar.                Defendant

satisfied the definition of a persistent offender. He was over twenty-one years

old. He had committed at least two crimes, at different times, when he was at

least eighteen years old.

      Defendant takes issue with this part of the analysis, claiming there were

not enough qualifying crimes. He relies on State v. Clarity, 454 N.J. Super. 603


                                                                             A-2874-16T2
                                        17
(App. Div. 2018), that was decided sixteen months after the trial court sentenced

defendant. 5 In Clarity, we made clear that in applying N.J.S.A. 2C:44-3(a) "the

date of the 'crime' and not the date of the 'conviction' is the relevant event for

this aspect of the persistent-offender statute." Clarity, 454 N.J. Super. at 609.

      When the court sentenced defendant, it considered the dates of his prior

convictions, not the offense dates. Nevertheless, we are satisfied the court did

not err in finding defendant was a persistent offender. Defendant was convicted

in 2007 for a CDS offense that occurred in 2003. Defendant was sentenced to a

one-year jail term. He was also convicted in federal court in 2006 for offenses

occurring between January 2002 and December 2002. He was sentenced to a

term of fifty-eight months. Both of these offenses occurred within ten years of

this December 31, 2012 offense. We agree with the State that even though the

one-year sentence on the State charge was to be served concurrent with the

federal charge, defendant did not dispute that these were separate crimes that

could be considered by the court under N.J.S.A. 2C:44-3(a), even if the periods

of confinement overlapped.




5
  Neither of the parties address whether Clarity applies to a sentence entered in
2016.
                                                                           A-2874-16T2
                                       18
      The court determined that an extended sentence was appropriate. In

sentencing defendant, the court weighed the aggravating and mitigating factors.

It did not consider the death of the victim as an aggravating factor because that

"would be double counting." The court took into consideration the "nature and

circumstances of the offense," finding that the victim was "tortured" and that

there were "multiple opportunities where it could have stopped . . . [b]ut it just

went on and on, for hours." N.J.S.A. 2C:44-1(a)(1). There was a risk of re-

offense based on his prior convictions. N.J.S.A. 2C:44-1(a)(3). It considered

the seriousness of the offenses, as well as the need to deter any such future

conduct. N.J.S.A. 2C:44-1(a)(6) and (9). The court sentenced defendant to an

extended term with an eighty-five percent period of parole ineligibility based on

NERA.

      We are satisfied that the court did not abuse its discretion in sentencing

defendant within the extended term range. See State v. Pierce, 188 N.J. 155,

169-70 (2006) (providing "the court will apply an abuse of discretion standard

to the sentencing court's explanation for its sentencing decision within the entire

range"). The findings of aggravating and mitigating factors were based upon

competent and credible evidence in the record. Defendant's sentence did not

violate the sentencing guidelines nor was it excessive for this offense.


                                                                           A-2874-16T2
                                       19
                                     E

      Defendant contends the trial suffered from "cumulative errors" that

deprived him of a fair trial. See State v. Simms, 224 N.J. 393, 407 (2016)

(reversing conviction based on the "cumulative effect of the errors"). In light of

our opinion, rejecting the issues raised on appeal, there is no cumulative error

that would warrant a reversal of defendant's conviction or sentence.

      Affirmed.




                                                                          A-2874-16T2
                                       20
