                        NOT FOR PUBLICATION WITHOUT THE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-3577-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

URIAH HILL,

     Defendant-Appellant.
_______________________________

              Submitted May 9, 2017 – Decided September 19, 2017

              Before Judges Rothstadt and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Indictment
              No. 14-05-0453.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Theresa Y. Kyles, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Scott   A.    Coffina,    Burlington    County
              Prosecutor, attorney for respondent (Jennifer
              Paszkiewicz,    Assistant    Prosecutor,    of
              counsel; Boris Moczula, Legal Assistant, on
              the brief).

        The opinion of the court was delivered by

SUMNERS, J.A.D.
     At the start of trial, the judge denied defendant's motion

to suppress his video-recorded statement to the police and the

audio recording of a 911 call.     When the State did not produce the

911 caller to testify at trial, the trial judge denied defendant's

request that the jury be allowed to draw an adverse inference due

to her non-appearance.       The jury subsequently found defendant

guilty of the lesser-included offense of third-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1), against his then girlfriend (the

victim).    The   trial   judge   granted   the   State's   motion    for    a

discretionary extended term as a persistent offender, N.J.S.A.

2C:44-3(a), and imposed a sentence of seven years with three years

of parole ineligibility.

     Defendant raises the following arguments on appeal:

           POINT I

           DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS
           VIOLATED BY THE TRIAL COURT'S RULING THAT
           DEFENDANT'S STATEMENT WOULD BE ADMISSIBLE IN
           SPITE OF THE FACT THAT HE WAS NOT GIVEN AN
           OPPORTUNITY TO DECLINE TO WAIVE HIS FIFTH
           AMENDMENT RIGHTS. U.S. CONST. Amend. V; N.J.
           CONST. [(1947),] Art. I, PARA. 1 and 10.

           POINT II

           THE ADMISSION OF THE DECLARATIONS MADE IN THE
           911 TAPE BY THE NON-TESTIFYING WITHNESS []
           VIOLATED CRAWFORD V. WASHINGTON [1] BECAUSE THE
           DECLARATION WAS TESTIMONIAL AND THE DEFENSE

1
  Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.
2d 177, 194 (2004).

                                    2                                A-3577-14T3
            HAD NO PRIOR OPPORTUNITY TO CROSS-EXAMINE HER.
            U.S. CONST. Amends. VI, XIV; N.J. CONST.
            (1947), Art. I, PARAS. 1, 9 and 10

            POINT III

            THE TRIAL COURT'S DENIAL OF DEFENDANT'S
            REQUEST TO PROVIDE THE JURY WITH A CLAWANS[2]
            CHARGE ABOUT THE STATE'S FAILURE TO PRODUCE
            [THE 911 CALLER] DENIED THE DEFENDANT HIS
            RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S.
            CONST. AMENDS. V, VI, AND XIV; N.J. CONST.
            (1947), ART. I, PARS. 1, 9 AND 10. (RAISED
            BELOW).

            POINT IV

            THE EXTENDED TERM SENTENCE OF SEVEN YEARS,
            THREE WITHOUT PAROLE, FOR THIS THIRD-DEGREE
            AGGRAVATED ASSAULT IN THE MATTER IS EXCESSIVE.


Having considered defendant's arguments in light of the record and

the applicable law, we affirm his conviction, but reverse and

remand for resentencing.

                                 I.

       The trial record revealed the following.    According to two

eyewitness, a man punched a woman in the face and kicked her, as

she lay unconscious on the ground next to a gas station pump.     The

third witness, who reported the assault to the police by calling

911, did not testify because the State could not locate her.        In

her recorded call played to the jury, she stated that she "just



2
    State v. Clawans, 38 N.J. 162 (1962).

                                  3                          A-3577-14T3
witnessed a woman get the shit beat out of her [by a man]. . . .

She's knocked unconscious[,]" and "he kicked her like 3 times[,]"

then "walked off cussing."   She also commented that the woman was

bleeding, crying, and upset.    Based upon the description of the

assailant provided by the three witnesses, the police apprehended

defendant a few hundred yards away from the gas station.    At the

police station, defendant gave a video-recorded statement that was

shown to the jury, in which he admitted hitting the victim, his

then girlfriend.3   Also shown to the jury were video surveillance

cameras' recordings depicting defendant's confrontation with the

victim, and defendant kicking her after she fell to the ground.

The victim did not testify, but photographs taken at the hospital

showing her injuries were admitted into evidence.

                                II.

     We first address defendant's claim in Point I that his video-

recorded statement taken at the police station was obtained in

violation of his Miranda4 rights, and that, following a pre-trial

hearing, the trial judge erred in allowing its admission.




3
  A transcript of the interview was provided to the jury to follow
during the playing of the video but was not admitted into evidence.
4
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

                                 4                          A-3577-14T3
     Prior to giving a statement, defendant was read his Miranda

rights, which he said he understood.        Although defendant was not

specifically asked if he was waiving his rights before he gave a

statement,   he    confirmed   his   understanding   of   his   rights    by

initialing, signing, and dating the Miranda card.         Defendant then

proceeded to describe the events that led to his admission that

he struck his girlfriend.      At the conclusion of his statement, he

again acknowledged that he understood his Miranda rights and that

he was not forced into making statements that he did not want to

make.

     The judge denied defendant's motion to suppress the statement

based upon his review of the video recording and the transcript

of the recording.      Looking at the totality of the circumstances

and acknowledging that it was the State's burden to prove the

statement's admissibility, the judge found "there is no reasonable

doubt that would yield to the conclusion that this was nothing

other than a knowing and voluntary waiver of Miranda rights."

     We review a trial judge's factual findings in support of

granting or denying a motion to suppress to determine whether

"those findings are supported by sufficient credible evidence in

the record."      State v. Gamble, 218 N.J. 412, 424 (2014).         Where

the judge determines whether a defendant waived his right to remain

silent based solely on a video-recorded statement or documentary

                                     5                             A-3577-14T3
evidence, our Supreme Court recently held that we defer to a trial

court's factual findings. State v. S.S., 229 N.J. 360, 374 (2017).

     The Court in S.S. also addressed and reaffirmed this State's

historical   commitment       to    an     individual's    right   against     self-

incrimination.         "The        right     against     self-incrimination         is

guaranteed by the Fifth Amendment to the United States Constitution

and this state's common law, now embodied in statute, N.J.S.A.

2A:84A-19, and evidence rule, N.J.R.E. 503."                 Id. at 28 (quoting

State v. Nyhammer, 197 N.J. 383, 399, cert. denied, 558 U.S. 831,

130 S. Ct. 65, 175 L. Ed. 2d 48 (2009)).                  Most importantly, the

Court reaffirmed the standard that a reviewing court uses to

determine    if   a   defendant       asserted     his    right    against     self-

incrimination.

            Any words or conduct that reasonably appear
            to    be   inconsistent    with    defendant's
            willingness to discuss his case with the
            police are tantamount to an invocation of the
            privilege against self-incrimination.       In
            those circumstances in which the suspect's
            statement is susceptible to two different
            meanings, the interrogating officer must cease
            questioning and "inquire of the suspect as to
            the correct interpretation."       Unless the
            suspect makes clear that he is not invoking
            his right to remain silent, questioning may
            not resume. In other words, if the police are
            uncertain whether a suspect has invoked his
            right to remain silent, two alternatives are
            presented: (1) terminate the interrogation or
            (2) ask only those questions necessary to
            clarify whether the defendant intended to
            invoke his right to silence.

                                            6                                A-3577-14T3
           To invoke the right to remain silent, a
           suspect does not have to follow a prescribed
           script or utter talismanic words.    Suspects
           are mostly lay people unschooled in the law.
           They will often speak in plain language using
           simple words, not in the parlance of a
           constitutional scholar.      So long as an
           interrogating    officer    can    reasonably
           understand the meaning of a suspect's words,
           the suspect's request must be honored.

           [Id. at 29-30 (citations omitted).]


     Here, the record supports the motion judge's finding that

defendant was fully informed of his right to remain silent, waived

that right, and was aware that he was being investigated for the

assault in a domestic violence situation before he decided to

cooperate with the investigation and provide self-incriminating

information.     Thus, defendant's Miranda rights were not violated.

     Next, we turn to defendant's contention in Point II that

admission of the 911 audio recording of the non-testifying caller

violated   his   confrontation   rights   under   Crawford.   Defendant

argues some of the 911 remarks were testimonial and were so

intertwined with non-testimonial comments that he was denied the

opportunity to challenge the testimonial comments because the

caller did not testify.

     We review the trial court's evidentiary rulings to determine

whether there was a mistaken exercise of discretion.          State v.


                                   7                            A-3577-14T3
J.D., 211 N.J. 344, 354 (2012).   Where a 911 call is admitted into

evidence, we must consider the principles embodied in the Sixth

Amendment's Confrontation Clause, which preclude the admission

against a defendant of "[t]estimonial statements of witnesses

absent from trial," unless "the declarant is unavailable, and only

where the defendant has had a prior opportunity to cross-examine."

Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed.

2d at 197.    "Testimonial" statements often include those made

during structured police interrogation.   Id. at 69, 124 S. Ct. at

1374, 158 L. Ed. 2d at 203.   Nonetheless:

          Statements are nontestimonial when made in the
          course   of    police   interrogation    under
          circumstances objectively indicating that the
          primary purpose of the interrogation is to
          enable police assistance to meet an ongoing
          emergency.   They are testimonial when the
          circumstances objectively indicate that there
          is no such ongoing emergency, and that the
          primary purpose of the interrogation is to
          establish or prove past events potentially
          relevant to later criminal prosecution.

          [Davis v. Washington, 547 U.S. 813, 822, 126
          S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237
          (2006).]


     Generally, "at least the initial interrogation conducted in

connection with a 911 call, is ordinarily not designed primarily

to 'establis[h] or prov[e]' some past fact, but to describe current

circumstances requiring police assistance."    Id. at 827, 126 S.


                                  8                         A-3577-14T3
Ct. at 2276, 165 L. Ed. 2d at 240 (alterations in original).       That

is particularly so when "any reasonable listener would recognize

[the 911 caller] was facing an ongoing emergency."       Ibid.       If,

when viewed objectively, the nature of the colloquy between the

911 caller and the person called is such "that the elicited

statements [are] necessary to be able to resolve the present

emergency, rather than simply to learn . . . what had happened in

the past," the content of the call is not testimonial.       Ibid.

     We agree with the trial judge that the 911 caller was facing

an ongoing emergency and that her statements were non-testimonial.

As in Davis, the caller's sole purpose was to describe present

facts requiring police assistance.     Although the caller gave a

graphic and colorful description of what she saw, nothing in the

call suggests that it was her or the 911 operator's intent that

the she was declaring what had happened in the past to preserve

testimony for trial.

     Similarly, we agree with the judge's finding that the 911

call was admissible under our evidence rules as a present sense

impression or an excited utterance.    A present sense impression

is "[a] statement of observation, description or explanation of

an event or condition made while or immediately after the declarant

was perceiving the event or condition and without opportunity to

deliberate   or   fabricate."   N.J.R.E.   803(c)(1).   An    excited

                                 9                             A-3577-14T3
utterance is "[a] statement relating to a startling event or

condition     made    while      the     declarant    was      under   the    stress    of

excitement caused by the event or condition and without opportunity

to   deliberate      or   fabricate."           N.J.R.E.       803(c)(2).       The    911

statements satisfied the elements of both hearsay exceptions.                           We

also note that these exceptions apply "[w]hether or not the

declarant is available as a witness[.]"                   N.J.R.E. 803(c).

       Furthermore,       even      if    we    concluded       the    911    call     was

inadmissible,        it   would     not    cause     us   to    reverse      defendant's

conviction.     Reversal of a conviction is required only if there

was error "sufficient to raise a reasonable doubt as to whether

[it] led the jury to a result it otherwise might not have reached."

State v. Daniels, 182 N.J. 80, 95 (2004) (alteration in original)

(internal quotation omitted) (quoting State v. Macon, 57 N.J. 325,

336 (1971)); R. 2:10-2.                Our review of the record convinces us

that there was overwhelming evidence of defendant's guilt through

the two eyewitnesses' testimony that they saw defendant strike and

kick    the    victim,        the      surveillance       videos       depicting       the

confrontation and defendant's kick of the victim, photos of the

victim's injury, and the defendant's admission that he argued with

and then struck the victim.               Thus, admission of the 911 call did

not cause an unjust result.



                                           10                                    A-3577-14T3
     In Point III, defendant further challenges the admission of

the 911 call by contending that the judge erred in refusing to

give a Clawans charge to allow the jury to draw an adverse

inference from the State's failure to produce the testimony of the

911 caller.   There is no merit to this contention.

     In Clawans, our Supreme Court ruled that a party's failure

to produce a witness at trial may give rise to an inference that

the witness' testimony would have been unfavorable to that party.

Clawans, supra, 38 N.J. at 170 (1962).   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.

          [State v. Hill, 199 N.J. 545, 561 (2009)
          (alteration in original) (quoting State v.
          Hickman, 204 N.J. Super. 409, 414 (App. Div.
          1985), certif. denied, 103 N.J. 495 (1986)).]




                               11                          A-3577-14T3
      Here, none of these circumstances applies.                    There is no

evidence that the caller was in the sole control of the State, or

had a special relationship with the State.               She was available to

defendant   if   he   wanted    her    to     testify.       Yet,    given     her

observations, we find no basis to conclude that her testimony

would have aided his defense.               Considering the other strong

evidence presented by the State, the caller's testimony was not

essential to establish defendant's guilt.

      Finally, we turn to defendant's contention in Point IV that

we should remand for resentencing because the judge's application

of aggravating    factor   number     one, N.J.S.A. 2C:44-1(a)(1) (the

nature and circumstances of the offense, including whether it was

committed in an especially heinous, cruel, or depraved manner),

was not supported by the facts.            We agree.

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

is   limited."    State    v.   Miller,       205   N.J.   109,     127   (2011).

Nevertheless, we do not affirm a sentence where "the aggravating

factors . . . found by the sentencing court were not based upon

competent and credible evidence in the record."             State v. Fuentes,

217 N.J. 57, 70 (2014) (alteration in original) (quoting State v.

Roth, 95 N.J. 334, 364-65 (1984)).            "When applying [factor one],

'the sentencing court reviews the severity of the defendant's

crime, the single most important factor in the sentencing process,

                                      12                                  A-3577-14T3
assessing the degree to which defendant's conduct has threatened

the safety of its direct victims and the public.'"      Id. at 74.

(quoting State v. Lawless, 214 N.J. 594, 609 (2013)).             "[A]

sentencing court may justify the application of aggravating factor

one . . . by reference to the extraordinary brutality involved in

an offense. . . . A sentencing court may consider 'aggravating

facts showing that [a] defendant's behavior extended to the extreme

reaches of the prohibited behavior.'"     Id. at 75 (alteration in

original) (citations omitted) (quoting State v. Henry, 418 N.J.

Super. 481, 493 (Law. Div. 2010)).

       In applying aggravating factor one, the trial judge cited

State v. Mara, 253 N.J. Super. 204 (1992), to find that defendant's

kicking of the victim while she lay on the ground and left her

there was in excess of the injury needed to sustain second-degree

aggravated assault.    However, we conclude that in this situation

reliance on Mara was misplaced.

       In Mara, defendant was convicted of second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1), and in a separate trial, of

driving under the influence of alcohol, N.J.S.A. 39:4-50.      Id. at

208.    He struck the victim, who was on the side of the road with

a disabled vehicle, causing serious bodily injury.    Ibid.    He did

not stop or attempt to obtain assistance for the victim.      Id. at

213-14.    We affirmed the court's finding that aggravating factor

                                 13                           A-3577-14T3
one applied where, in an aggravated assault case, "the serious

injuries were far in excess of that required to satisfy" statutory

elements.     Id. at 214.5

     Here, the facts do not warrant application of aggravating

factor one.    The defendant's act of kicking the victim was not far

in excess of what was necessary to satisfy second-degree aggravated

assault.    There is no evidence that the kicking caused any injury

to the victim.     Hence, we remand the matter to the trial judge to

re-sentence defendant without consideration of this factor.         We

do not express any opinion as to the appropriate sentence.

     Affirmed in part; reversed in part and remanded.     We do not

retain jurisdiction.




5
 We did, however, remand for resentencing because the trial court
double counted elements of aggravated assault by considering
aggravating   factors   recklessness  and   conduct   manifesting
indifference to human life. Mara, supra, 253 N.J. Super. at 215.

                                  14                         A-3577-14T3
