                                NOT FOR PUBLICATION WITHOUT THE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-1252-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMAR T. JENKINS, a/k/a
JAMAR JENKINS, ROCK,
JAY ROCK, TURELL
BLANDING, and JAMES
JENKINS,

     Defendant-Appellant.
_____________________________

                   Submitted February 6, 2019 – Decided September 26, 2019

                   Before Judges Ostrer and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 15-10-3023.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Laura B. Lasota, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Mary Eva Colalillo, Camden County Prosecutor,
                   attorney for respondent (Maura Murphy Sullivan,
                   Assistant Prosecutor, of counsel and on the briefs).
            Appellant filed a pro se supplemental brief.

      The opinion of the court was delivered by

OSTRER, J.A.D.

      A jury found defendant Jamar Jenkins guilty of third-degree terroristic

threats, N.J.S.A. 2C:12-3(a); third-degree stalking in violation of a court order,

N.J.S.A. 2C:12-10(c); fourth-degree stalking, N.J.S.A. 2C:12-10(b); fourth-

degree domestic violence contempt, N.J.S.A. 2C:29-9(b); and petty disorderly

persons harassment, N.J.S.A. 2C:33-4(a), as a lesser-included offense of a

separate terroristic threat charge. The victim was defendant's former girlfriend,

M.P., with whom he had a young child. As a persistent offender, he received an

aggregate sentence of thirteen years, including an eight-year extended term for

third-degree stalking, consecutive to a five-year term for making a terroristic

threat.

      On appeal, defendant contends in his counseled brief that the trial judge

wrongly admitted Rule 404(b) evidence that defendant engaged in prior alleged

acts of domestic violence, and that he carried a handgun. He also challenges his

sentence as excessive, and argues the court abused its discretion in imposing

consecutive terms.




                                                                          A-1252-17T4
                                        2
      We find merit in the first argument, but not the second. We agree that the

State did not present clear and convincing evidence of the prior bad acts, as

required by the test for admissibility in State v. Cofield, 127 N.J. 328, 338

(1992). The State relied on the alleged victim's hearsay, conveyed by a police

officer who lacked personal knowledge of the alleged acts.              Under the

circumstances, this did not satisfy the rigorous standard of proof that Cofield

established.

      As for the sentencing, we recognize that the terroristic threat was

consistent with, and related to the course of conduct that gave rise to the stalking

conviction. But, it was a distinct and exacerbating offense. The trial judge

appropriately exercised his discretion under State v. Yarbough, 100 N.J. 627

(1985), in imposing consecutive sentences.

      In a pro se supplemental brief, defendant raises four additional arguments.

They either have no merit, or should be raised first before the trial court.

                                         I.

      Defendant's relationship with M.P. ended around the beginning of 2015.

He was disturbed that M.P. had begun seeing another man. According to M.P.'s

testimony at trial, defendant engaged in a course of conduct and made threats in

2015 that formed the basis of the legal charges against him.           Third-party


                                                                            A-1252-17T4
                                         3
witnesses attested to some of defendant's actions, but not the most egregious

ones. The State bolstered its case with testimony of defendant's prior bad acts.

                                       A.

      At a pre-trial hearing, the State sought approval to introduce at trial

evidence about four alleged prior bad acts: in November 2014, defendant kicked

and damaged M.P.'s front door; in December 2014, defendant threw a rock

through M.P.'s window; at an unspecified time and place, defendant choked her;

and defendant carried a silver handgun, which he once displayed to M.P. 1

      The State's sole witness at the hearing was a police officer, who recounted

what M.P. told him on two separate occasions in 2015 about the alleged earlier

incidents. He referred to a written complaint that M.P. filed in November 2014,

reporting that someone – she did not name defendant – had damaged her front

door while she was not home. The officer testified that M.P. alleged that

defendant later admitted in a phone call that he damaged the door. According

to the officer, M.P. asserted that defendant said he would do it again if M.P. had

another man in her house.


1
  The State unsuccessfully sought permission to introduce evidence of a fifth
incident in October 2014, involving defendant's alleged taking of M.P.'s
property. Defendant apparently visited the home, in the company of a police
officer and apartment manager, to retrieve his own property. That incident is
not before us.
                                                                          A-1252-17T4
                                        4
      The officer also said that M.P. told him about the December 2014 rock-

throwing incident. Again, M.P. was not at home. In her report to police

immediately following the incident, M.P. did not accuse defendant. The officer

testified that M.P.'s neighbor witnessed the event, although the neighbor actually

spoke to a different officer.

      The officer also testified that in his second interview with M.P., she

disclosed defendant's handgun possession, stating "she had known him to have

a handgun" and she saw him with it "at one point." She said he carried the

handgun if he was in a bar, or with friends, but not if he was "just selling drugs"

near his residence. The officer also stated that M.P. asserted that defendant had

choked her in the past, but did not say when or where.

      Defense counsel contended that the prior bad act evidence was

inadmissible. Counsel argued that the State was relying on hearsay, in some

cases double and triple hearsay. The prosecutor responded that hearsay was

admissible at the hearing, and the officer was permitted to "testify as to what

[M.P.] said. So, it's as if she was testifying."

      Applying Cofield, the court rejected the defense arguments and found that

the evidence of the four incidents was relevant to material issues at trial, similar

in kind or reasonably close in time to the charged offenses, the proof of the act s


                                                                            A-1252-17T4
                                         5
was clear and convincing, and the apparent prejudice did not outweigh the

probative value of the evidence.

      With respect to the standard of proof, the trial judge credited M.P. as if

she had testified at the hearing. Referring to the door incident, the judge stated,

"The testimony by [M.P.] . . . the victim, herself, is adequate to establish by

clear and convincing evidence that the defendant committed that act . . . ."

Regarding gun possession, the judge also appeared to shift the burden to

defendant, stating, "The testimony of the victim is more than sufficient to

establish the fact [of gun possession] by clear and convincing evidence,

particularly where there's no other factors or evidence placing those

observations into question." As for the rock-throwing incident, the court found

the evidence clear and convincing based on the neighbor's anticipated testimony.

Regarding evidence of the alleged choking, the court found it admissible based

on a "similar analysis to that of the gun."

                                        B.

      At trial, M.P. described a course of conduct in 2015 that included threats,

interference with her employment, disclosure of an intimate recording, and new

incidents of damage to her property. M.P. testified that one day in February

2015, while M.P. was at her sister's home, defendant parked his car nearby and


                                                                           A-1252-17T4
                                         6
called M.P. on the phone. Upset that M.P. had recently moved in with another

man, defendant told M.P. that he was going to kill her and her whole family. He

said he had nothing to lose and he did not want his son around another man.

Consistent with the court's pre-trial ruling, M.P. said that defendant had a silver

handgun at the time, because she "saw it before."

      M.P. testified defendant also posted on social media a video of M.P. that

he had taken when they were together. The video showed M.P. naked, getting

dressed in a bedroom, in the presence of the couple's baby. The dissemination

of the video led to the temporary removal of M.P.'s four children by the Division

of Child Protection and Permanency. 2        The video was also a source of

embarrassment to M.P. and her older children.

      Defendant tried to get M.P. fired from her job as a home health aide. M.P.

had recorded one of her clients being verbally abusive to her.          Defendant

believed that recording a client violated M.P.'s conditions of her employment.

Having access to the cell phone containing the recording, defendant presented

the recording to M.P.'s supervisor, and urged her to take action against M.P.

The supervisor testified at trial that she was already aware of the recording; and


2
   The record before us does not explain the grounds for the removal, but we do
not presume that a mother dressing in the presence of an infant was grounds by
itself to remove children from the home.
                                                                           A-1252-17T4
                                        7
under the circumstances, she had no intention of disciplining M.P. According

to the supervisor, defendant had said that M.P. was "messing up his life, so he

wanted to mess up hers."

      Around April 28, 2015, defendant called M.P. numerous times from

anonymous numbers. Most times, she refused to answer. When she did, the two

would argue. Once, defendant called M.P. while she was in a courthouse. He

told her to drop the charges or there would be an issue. During a call to M.P.

while she was visiting her sister, defendant threatened to damage her house and

kill her and her family. M.P. later found her home vandalized. M.P. claimed

that defendant admitted responsibility, but later recanted.

      On May 23, 2015, defendant went to M.P.'s home and started kicking the

door. M.P. testified that she was at home but chose to remain inside until

defendant left. Later that day, M.P.'s neighbor told her that she saw defendant

kick the door. The neighbor testified to the incident at trial, as well as the prior

rock-throwing incident. The neighbor testified that M.P. was not at home when

defendant kicked the door.

      M.P. testified that these incidents were very upsetting and made her afraid.

She said, "I mean, you don’t know what this man is going to do. There's multiple

threats.   There's home visits." M.P. did not testify to a choking incident,


                                                                            A-1252-17T4
                                         8
notwithstanding the officer's testimony at the pre-trial hearing. Rather, she

stated, "There’s beating me up, and ambulance [sic]. There's a lot going on at

the time." She said it was going to continue until "someone put a stop to it."

                                        C.

      The jury acquitted defendant of a terroristic threat to kill, N.J.S.A. 2C:12-

3(b), arising out of the February 2015 incident; and found defendant guilty

instead of harassment. However, the jury convicted defendant of a terroristic

threat of violence, N.J.S.A. 2C:12-3(a), arising out of the April 2015 incident.

The jury also found defendant guilty of fourth-degree stalking, N.J.S.A. 2C:12-

10(b), for the course of conduct between February 13 and May 23, 2015. After

the verdict on those charges, the State introduced evidence that a restraining

order was in place between February 13 and March 2, 2015. The jury then found

defendant guilty of third-degree stalking in violation of a restraining order,

N.J.S.A. 2C:12-10(c); and fourth-degree contempt, N.J.S.A. 2C:29-9.

                                        D.

      At the sentencing hearing, M.P. partially recanted her trial testimony. She

stated she was compelled to testify. She alleged that the prosecutor urged her

to say defendant had a gun, and if she did not comply, it would affect her ability

to see her children. "I lost my kids before, Your Honor. I did not want to lose


                                                                           A-1252-17T4
                                        9
them again." She said, "Him having a gun is a lie." She also said, "He did not

threaten to kill me." She confirmed her testimony about going to her workplace.

She added, "Did he break the windows, the doors? As I stated before, I did not

see him. The witness stated that she did." As for the social media posting, she

said, "Everything else that he did, naked pictures on the internet, that is the truth.

But, him having a weapon, on my god, on my kids, he did not."

      She said she did not want her son to suffer the hardship of his father's

incarceration. She said she had forgiven defendant. "Everything he did, I

forgave him for it. He did do it. But, with the gun and threatening me, Your

Honor, he did not."

      The judge acknowledged that M.P. testified pursuant to a material witness

subpoena, and he had issued a warrant for her arrest because she had failed to

comply.    After hearing M.P.'s statement, the judge stated he would move

forward with sentencing, stating "the convictions were not based on possession

or a lack of a possession of a gun." The judge stated, "[E]verything [M.P.] said,

quite frankly, supports the crimes for which this defendant has been convicted."

Defense counsel disputed the point but did not move for a new trial. The judge

did not directly address M.P.'s plea for leniency.




                                                                              A-1252-17T4
                                         10
      The court granted the State's motion for a persistent-offender extended

term, N.J.S.A. 2C:44-3(a), based on defendant's 2011 and 2006 convictions for

possession of a firearm while committing a CDS offense and aggravated arson.

The court found aggravating factors three (risk of reoffending); six (extent of

prior record and offense seriousness); nine (need to deter); and fifteen (involved

act of domestic violence). N.J.S.A. 2C:44-1(a)(3), (6), (9), and (15). The court

noted that defendant also had prior convictions for burglary, in 1998, and

weapons violations, in 2002; a juvenile adjudication for terroristic threats; and

numerous municipal court encounters. The court rejected the defense suggestion

of various mitigating factors, except factor eleven, hardship on his child,

N.J.S.A. 2C:44-1(b)(11). The court observed that defendant was a violent man

and a lengthy sentence was justified to protect the victim and the public. The

court concluded the aggravating factors substantially outweighed the mitigating

factors.

      The court imposed an extended term of eight years on the third-degree

stalking count. With the State's urging, the court merged the fourth -degree

stalking count into the third-degree count, notwithstanding that the former

covered a longer period of time than the latter.       The prison terms on the

remaining counts – five years on terroristic threats, eighteen months on


                                                                          A-1252-17T4
                                       11
contempt, and thirty days on harassment – were to be served concurrently with

each other, but consecutively to the eight-year term.         In support of the

consecutive terms, the court noted that the terroristic threat occurred in April

2015, after the February-to-March course of conduct that formed the basis of the

third-degree stalking charge. Although the harassment – as a lesser included

offense – occurred within the February-to-March range, the court noted it was

"separate and distinct" from the fear caused by the stalking course of conduct.

                                        E.

         On appeal, defendant raises the following arguments in his counseled

brief:

         POINT I

              THE TRIAL COURT ERRED IN PERMITTING THE
              STATE      TO     ADMIT   SEVERAL   PRIOR
              UNCHARGED         BAD   ACTS   ALLEGEDLY
              COMMITTED BY DEFENDANT. BECAUSE THE
              EVIDENCE WAS NOT PROPERLY ADMISSIBLE
              FOR ANY ENUMERATED PURPOSE UNDER
              N.J.R.E. 404(B), IT SHOULD NOT HAVE BEEN
              ADMITTED.

                   A. THE NOVEMBER AND DECEMBER 2014
              INCIDENTS.

                  B.   DEFENDANT'S   ALLEGED  PRIOR
              POSSESSION OF A   HANDGUN   AND   THE
              CHOKING INCIDENT.


                                                                         A-1252-17T4
                                        12
      POINT II

            DEFENDANT'S SENTENCE IS MANIFESTLY
            EXCESSIVE AND MUST BE REDUCED.

      We discern four additional issues from defendant's supplementary pro se

brief. He argues: his right to be present at trial was violated; he was denied a

fair trial and due process because M.P. partially recanted her testimony; his

defense counsel had a conflict of interest because he was in a relationship with

the case's initial prosecutor; and his counsel was ineffective because defendant

was not properly advised regarding his extended term exposure during the plea

negotiations.

                                       II.

      We start with the admissibility of the prior-bad-act evidence. We review

the trial court's decision to admit N.J.R.E. 404(b) evidence under the abuse of

discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991). If the evidence

was improperly admitted, it must still survive harmless error analysis. There

must be "a reasonable doubt as to whether the error led the jury to a result it

otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

      Rule 404(b) is a rule of exclusion. State v. Green, 236 N.J. 71, 84 (2018).

To be admissible, other-crimes-or-wrongs evidence must satisfy four prongs:



                                                                         A-1252-17T4
                                      13
            (1) The evidence of the other crime must be admissible
            as relevant to a material issue;

            (2) It must be similar in kind and reasonably close in
            time to the offense charged;

            (3) The evidence of the other crime must be clear and
            convincing; and

            (4) The probative value of the evidence must not be
            outweighed by its apparent prejudice.

            [Cofield, 127 N.J. at 338 (quoting Abraham P. Ordover,
            Balancing The Presumptions of Guilt And Innocence:
            Rules 404(b), 608(b), And 609(a), 38 Emory L. J. 135,
            160 (1989)).]

      Although defendant challenges the court's findings as to all four prongs,

we find merit only in his contention that the State failed to present clear and

convincing evidence of the prior incidents involving rock throwing and door

damage; gun possession; and choking. In particular, the facts that defendant

possessed and displayed a gun and previously assaulted M.P. were relevant to

material issues, including (1) whether defendant's later actions occurred "under

circumstances reasonably causing the victim to believe the immediacy of the

threat and the likelihood that it will be carried out," N.J.S.A. 2C:12-3(b)

(terroristic threats), and (2) whether his course of conduct would "cause a

reasonable person to fear for his [or her] safety . . . or suffer other emotional

distress," N.J.S.A. 2C:12-10(b) (stalking). The prior rock throwing and door

                                                                         A-1252-17T4
                                      14
damage incidents were also relevant to the issue whether defendant engaged in

the later behavior with the purpose or knowledge it would cause fear or

emotional distress.

      Because of the prejudicial nature of other crimes and wrongs evidence,

our Court has adopted the "clear and convincing" standard of proof, to assure

that such evidence is admitted only upon firm proof that the party actually

committed the other crime or wrong. "'Because of the high probability of

prejudice from the admission of prior bad acts, the court must ensure that the

evidence against the defendant directly establishes "that the defendant took part

in the collateral act . . . ."'" State v. Hernandez, 170 N.J. 106, 123 (2001)

(quoting State v. Terrazas, 944 P.2d 1194, 1198 (Ariz. 1997) (citation omitted)).

The standard of proof is closely related to the balance between the probative

value of the evidence and its prejudicial nature. "[T]he evidence has low

probative value if the clear and convincing proof standard is not satisfied."

Ordover, 38 Emory L. J. at 164.

      "[T]he third prong of our Cofield test requires that the judge serve as a

gatekeeper to the admission of other-crime evidence." Hernandez, 170 N.J. at

123. A judge may not abdicate that gatekeeping role by leaving to the jury the




                                                                         A-1252-17T4
                                      15
threshold determination whether the prior crime or wrong actually occurred.

State v. Sheppard, 437 N.J. Super. 171, 201 (App. Div. 2014).

      The standard of proof is demanding. Clear and convincing evidence

"produce[s] in the mind of the trier of fact a firm belief or conviction as to the

truth of the allegations sought to be established, evidence so clear, direct and

weighty and convincing as to enable (the factfinder) to come to a clear

conviction, without hesitancy, of the truth of the precise facts in issue." In re

Samay, 166 N.J. 25, 30 (2001) (quoting In re Boardwalk Regency Corp., 180

N.J. Super. 324, 339 (App. Div. 1981) (internal quotation marks and citation

omitted)). We recognize that the standard may be "satisfied by uncorroborated

testimonial evidence." In re Samay, 166 N.J. at 30. We also recognize that

hearsay is admissible in a pretrial hearing to determine the admissibility of

other-crimes evidence. See N.J.R.E. 104(a). However, the issue before us is

not the admissibility of M.P.'s hearsay statements – conveyed by the officer and

memorialized in various reports.      The issue is the persuasiveness of such

hearsay, which is uncorroborated by any other evidence except – to a limited

extent – the double hearsay of a neighbor to another officer, untested by cross-

examination or the court's assessment of the speaker's demeanor.




                                                                          A-1252-17T4
                                       16
      Hearsay is generally considered "untrustworthy and unreliable" if it does

not satisfy one of the exceptions which are "created out of necessity and . . .

justified on the ground that 'the circumstances under which the statements were

made provide strong indicia of reliability.'" State v. White, 158 N.J. 230, 238

(1999) (quoting State v. Phelps, 96 N.J. 500, 508 (1984)). Hearsay is generally

barred "to ensure the accuracy of the factfinding process by excluding

untrustworthy statements, such as those made without the solemnity of the oath,

and not subject to cross-examination by the accused or the [fact-finder's] critical

observation of the declarant's demeanor and tone." State v. Engel, 99 N.J. 453,

465 (1985). Hearsay may suffer from failures of perception, memory, and

narration. See Neno v. Clinton, 167 N.J. 573, 579 (2001) (citing McCormick on

Evidence § 245 (5th ed. 1999)).         Hearsay's inherent limitations are not

transformed simply because it is admissible in a pre-trial hearing under N.J.R.E.

104(a).

      Inadmissible hearsay does not suffice to prove other crimes or wrongs at

trial. See State v. Ingenito, 87 N.J. 204, 224 (1981) (Schreiber, J., concurring)

(stating that "proof of the other crime should be direct evidence of that crime,

not hearsay"); see also Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence, cmt. 8(c) on N.J.R.E. 404 (2019). In State v. Carlucci, 217 N.J. 129


                                                                           A-1252-17T4
                                       17
(2014), the Court reversed a trial court's determination, in a prosecution for

simple cocaine possession, to admit evidence that the defendant previously used

the drug. The only evidence of the defendant's prior use was an officer's

testimony that defendant admitted such use. The Court noted, "Here, there is no

evidence, other than Patrolman Buss's testimony about defendant's statement,

that she last used crack cocaine two days before her arrest." Id. at 143. The

Court concluded that the "clear and convincing" prong was not met. Ibid.

      Other jurisdictions that have adopted the "clear and convincing" standard

have likewise questioned whether proof of other crimes or wrongs may consist

solely of hearsay. The Tennessee Supreme Court, for example, recognized "that

inadmissible hearsay is insufficient to establish a prior bad act under Rule

404(b)." State v. Sexton, 368 S.W.3d 371, 405 (Tenn. 2012); see also State v.

Pullens, 800 N.W.2d 202, 222 (Neb. 2011).

      In this case, the trial court credited M.P.'s statements, and those of a

neighbor, without the opportunity to assess the witness's demeanor, and without

the benefit of cross-examination.    The most damning prior acts – the gun

possession and prior choking – were also the most questionable. They lacked

detail as to time and place. M.P. alleged in 2015, upon police questioning, that

defendant possessed a weapon and once displayed it to her; yet, she apparently


                                                                        A-1252-17T4
                                      18
never mentioned that in connection with her 2014 reports. Likewise, she

apparently never reported the choking incident, although she reported damage

to her front door and window.

      The trial court erred in treating M.P.'s hearsay statements as the equivalent

of in-court testimony, as the statements were stripped of the basic in-court tests

of reliability – assessment of demeanor and cross-examination.                  M.P.'s

recantation at sentencing about defendant's gun possession only heightens

doubts that the State would have been able to meet the third Cofield prong, had

defense counsel had the opportunity to challenge her assertions outside the jury's

presence.

      In sum, the record lacked sufficient credible evidence for the court to

conclude, by clear and convincing evidence, that defendant committed the prior

crimes or wrongs alleged.

      We also reject the State's argument that any error in admitting the 404(b)

evidence was harmless. An error is harmless if "any prejudice to defendant was

not such that created a real possibility that the jury arrived at a result it otherwise

might not have reached." State v. Marrero, 148 N.J. 469, 492-93 (1997). "[W]e

focus on 'whether in all the circumstances there was a reasonable doubt as to




                                                                               A-1252-17T4
                                         19
whether the error denied a fair trial and a fair decision on the merits.'" State v.

Kemp, 195 N.J. 136, 149 (2008) (quoting Macon, 57 N.J. at 338)).

      Noting the inherently prejudicial nature of other-crimes-and-wrongs

evidence, the Supreme Court has cautioned against overuse of the harmless error

doctrine involving the wrongful admission of such evidence:

            This Court has sought to prevent overuse of the
            "harmless error" doctrine . . . . For this reason, the rule
            of harmless error should be summoned only with great
            caution in dealing with the breach of fundamental
            procedural safeguards "designed to assure a fair trial."
            "There is widespread agreement that other-crime
            evidence has a unique tendency to turn a jury against
            the defendant. The likelihood of prejudice is acute
            when the proffered evidence is proof of a defendant's
            uncharged misconduct."

            [State v. G.V., 162 N.J. 252, 262 (2000) (first citation
            omitted; second citation quoting State v. Stevens, 115
            N.J. 289, 302 (1989)).]

Rejecting a claim of harmless error, the Court in G.V. stated, "Nothing could be

more prejudicial than the erroneous admission of such testimony." G.V., 162

N.J. at 261. "The erroneous admission of evidence of other crimes . . . carries

such a high risk of prejudice as ordinarily to call for reversal." Id. at 262

(quoting State v. Atkins, 151 N.J. Super. 555, 570 (App. Div. 1977), rev'd on

other grounds, 78 N.J. 454 (1979)).



                                                                           A-1252-17T4
                                       20
      Given the highly prejudicial nature of the other-crimes-and-wrongs

evidence in this case, we cannot find, beyond a reasonable doubt, that the jury's

verdict was unaffected – particularly by the evidence of defendant's alleged gun

possession and his alleged prior assault. Both incidents tarred defendant as a

violent man, prepared to engage in violence. The evidence lent credence to

M.P.'s fear of defendant and its objective reasonableness. It also supported the

State's contention that defendant acted purposefully or knowingly in causing

fear. Notably, the prosecutor highlighted the gun possession and prior assault

in her closing, arguing that those facts made reasonable M.P.'s fear and

emotional distress and strengthened the proofs that defendant acted purposefully

and knowingly.3

      Although we conclude that the other-crimes-and-wrongs evidence was

admitted in error, reversal of the conviction and a new trial are not necessarily

required. At a new trial, the State would have a second opportunity to seek

admission of the 404(b) evidence. However, if the evidence were again deemed

admissible, there would be no justification for a new trial.


3
   The prosecutor argued, "[T]his man beat her before, broke her windows,
following through on every threat he made, carried a weapon. Again, that would
put a person in reasonable fear of imminent death." She added, "When you've
seen him with a weapon, when he's beaten you before, and he threatens to kill
you, that is terrorizing."
                                                                         A-1252-17T4
                                       21
      Therefore, we remand initially only for a new N.J.R.E. 104(a) hearing,

consistent with the guidance in this opinion, to determine the admissibility of

the Rule 404(b) evidence. We presume that at such a hearing, the State will

attempt to marshal proofs more persuasive than the hearsay statements conveyed

by an officer, but will instead call upon the alleged victim, or other persons with

personal knowledge of the other crimes or wrongs.

      If the trial court, exercising its gatekeeping role, determines that the State

has proved all four prior crimes or wrongs by clear and convincing evidence,

then its admission at trial would not have been error, and the jury's verdict, and

the court's sentence, which we discuss below, shall not be disturbed. However,

if the State fails to make the requisite showing as to one or more of the four prior

alleged acts, then, consistent with our rejection of the State's harmless error

argument, the conviction must be reversed and a new trial had. See State v.

Stubbs, 433 N.J. Super. 273, 289 (App. Div. 2013).

      Without intending any criticism of the trial judge's diligence and

impartiality, we also order that the hearing be conducted before a different

judge, inasmuch as the trial judge has made credibility determinations based on

the officer's hearsay testimony. See J.L. v. J.F., 317 N.J. Super. 418, 438 (App.

Div. 1999).


                                                                            A-1252-17T4
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                                       III.

      We are unpersuaded by defendant's challenge to his sentence. Exercising

our deferential standard of review, State v. Fuentes, 217 N.J. 57, 70 (2014), we

are satisfied that the court adhered to sentencing guidelines and relied upon

competent and credible evidence, and the sentence was not "clearly

unreasonable so as to shock the judicial conscience." Ibid. (quoting State v.

Roth, 95 N.J. 334, 365 (1984)).

      We recognize that a thirteen-year aggregate sentence for the third- and

fourth-degree offenses committed here is at the high end of those typically

imposed. But, the trial judge explained in detail his reasoning, in support of his

finding of the applicable sentencing factors. In particular, the judge noted

defendant's extensive criminal record, which was marked by numerous prior acts

of violence, and the failure of previous terms of incarceration to deter

defendant's continuing criminal conduct.

      Particularly with respect to the imposition of consecutive terms, we

discern no abuse of discretion. There is no presumption favoring concurrent

sentences. State v. Abdullah, 184 N.J. 497, 513 (2005). And, "there can be no

free crimes in a system for which the punishment shall fit the crime." Yarbough,




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                                       23
100 N.J. at 643. The trial judge carefully considered the five factors identified

in Yarbough to guide the decision whether to impose a consecutive term:

            (1) whether "the crimes and their objectives were
            predominately independent of each other"; (2) whether
            they "involved separate acts of violence or threats of
            violence"; (3) whether they "were committed at
            different times or separate places, rather than being
            committed so closely in time and place as to indicate a
            single period of aberrant behavior"; (4) whether they
            "involved multiple victims"; and (5) whether "the
            convictions for which the sentences are to be imposed
            are numerous."

            [State v. Spivey, 179 N.J. 229, 244 n.4 (2004) (quoting
            Yarbough, 100 N.J. at 633-34).]

      The Yarbough factors must be applied "qualitatively, not quantitatively."

State v. Carey, 168 N.J. 413, 427 (2001). Consequently, "a sentencing court

may impose consecutive sentences even though a majority of the Yarbough

factors support concurrent sentences." Id. at 427-28.

      The February-to-March course of conduct constituting the third-degree

stalking offense ended before defendant committed the terroristic threat in April

2015. Thus, the two offenses were committed at different times and were

independent of each other.      However, even if one concluded that the two

offenses had a common objective – to terrorize and disturb defendant – and even

if one treated the terroristic threat as part of the course of conduct – as it fell


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                                       24
within the time-frame of the fourth-degree stalking charge – the trial judge did

not err in treating the stalking and terroristic threat offenses as distinct and

separate offenses. By its nature, stalking need not rise to the level of a terroristic

threat. See Cannel, N.J. Criminal Code Annotated, cmt. 1 on N.J.S.A. 2C:12-

10 (2019) (noting that New Jersey "enacted stalking legislation in response to a

type of persistent, distressing or threatening behavior generally perceived as

more serious than harassment, at least in its persistence, but not yet ripened into

terroristic threats or assault"). Here, it did. The court was not obliged to impose

concurrent terms, which would depreciate the seriousness of defendant's

conduct.

                                         IV.

      Finally, we turn to defendant's pro-se arguments. He argues that his due

process and fair trial rights were violated because the court compelled M.P. to

testify against him when she was unwilling. He contends that on the last day of

trial, M.P. appeared in the courthouse, prepared to testify on defendant's behalf,

but was unable to enter the courtroom. He highlights M.P.'s partial recantation

at sentencing.

      We discern no error in the State compelling M.P. to testify. See R. 3:26-

3 (authorizing the arrest and compelled testimony of a material witness). We


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                                        25
also find no evidence in the record that M.P. was prepared to testify on

defendant's behalf during the trial. Defendant failed to appear in court on June

21, 2017 until late in the day's proceedings. By that time, the State already

rested; defense counsel unsuccessfully moved for acquittal and then rested as

well.     There was some discussion at that late stage that defendant had an

unnamed witness he wanted to present.            The judge did not preclude the

possibility of reopening the trial the next day to afford defendant that

opportunity. However, the next day, defendant again failed to appear until after

closing arguments were heard. Defendant then complained that M.P. was forced

to testify, but he did not assert that she was ready and willing to testify on his

behalf.     Therefore, we discern no basis for defendant's claim that he was

deprived a fair trial because he was denied the right to present M.P.'s testimony.

        We recognize that M.P.'s post-verdict, partial recantation at sentencing, in

September 2017, may have formed the basis of a motion for a new trial , or a

petition for post-conviction relief. However, no such motion or petition was

made, and we shall not reach the merits of such a motion or petition in the first

instance.

        Defendant's argument that his right to be present at trial was violated lacks

sufficient merit to warrant extended discussion. A defendant may waive his


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                                         26
right to be present by, among other ways, failing to appear after actual notice of

the trial date, as occurred here. See State v. Finklea, 147 N.J. 211, 218-19

(1996). Defendant blamed his late arrival one day on his mother, who usually

handled his paperwork, and his late arrival another day, based on the claim that

the courtroom door was locked. The court properly rejected the first excuse as

unacceptable. The court rejected the second as factually baseless, noting that

numerous persons freely entered the courtroom when defendant claimed it was

closed.

      Defendant also contends his defense attorney had a conflict of interest

because he dated the assistant prosecutor who was initially assigned the case,

but later replaced. He also contends that his attorney was ineffective because

he allegedly failed to inform defendant that he was exposed to an extended term;

and he would have taken a plea offer of non-custodial probation had he not been

misinformed.    Both these claims are more suitable to a petition for post -

conviction relief, as they rely on evidence outside the trial record. See State v.

Preciose, 129 N.J. 451, 459-60 (1992).

                                       V.

      In sum, we remand for a new hearing on the admissibility of the other -

crimes-or-wrongs evidence before a new judge. If the trial court finds, by clear


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                                       27
and convincing evidence, that the prior acts occurred, then the conviction and

sentence shall not be disturbed. If the trial court is not so persuaded, then the

conviction and sentence shall be reversed, and defendant granted a new trial.

      Affirmed in part and remanded in part. We do not retain jurisdiction.




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