                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-0407-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RICHARD S. RANDAZZO,

     Defendant-Appellant.
_____________________________

                    Submitted February 11, 2019 – Decided March 14, 2019

                    Before Judges Fasciale, Gooden Brown and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 13-03-1026.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Margaret R. McLane, Assistant Deputy
                    Public Defender, of counsel and on the briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Arielle E. Katz, Deputy Attorney General,
                    of counsel and on the brief).

PER CURIAM
      A grand jury indicted and charged defendant with committing first-degree

murder, N.J.S.A. 2C:11-3(a)(1) and (2) (Count One); two counts of second-

degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (Counts Two and

Four); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (Count

Three). On Count One, the jury found him guilty of second-degree reckless

manslaughter, N.J.S.A. 2C:11-4(b)(1). They found him guilty on Counts Two

and Four (for offenses committed on different dates), and acquitted him on

Count Three. We affirm.

      The victim in this case was defendant's two-month-old daughter. She

sustained fractures to her left upper arm, legs, and fifth rib, stopped breathing,

and went into cardiac arrest. An ambulance took her to the hospital and four

days later, the doctors removed her from life support and she died. During those

four days, she had suffered from internal bleeding; swelling and a subdural

hemorrhage of the brain; fluid in her lungs; seizures; and massive retinal

hemorrhages.

      The police asked defendant and his wife, who was not home when the

injuries occurred, to give statements. They arrived at the police station for that

purpose, and while defendant was giving his statement, the police received

information from a doctor that the victim's injuries were consistent with abuse.


                                                                          A-0407-16T4
                                        2
After the police conveyed that information to defendant, he then admitted that

what he had said up to that point was a lie. He explained that he had killed his

daughter, but that it was an accident.

      On appeal, defendant argues:

            POINT I

            BECAUSE    THE  POLICE   OBTAINED                    A
            CONFESSION   ONLY   AFTER  LYING                   TO
            DEFENDANT BY SPECIFICALLY TELLING                 HIM
            HE WAS REQUIRED TO EXPLAIN THAT                    HIS
            DAUGHTER'S DEATH WAS ACCIDENTAL,                  THE
            STATEMENT MUST BE SUPPRESSED.

            POINT II

            THE MOTION FOR A JUDGMENT OF ACQUITTAL
            ON ENDANGERING SHOULD HAVE BEEN
            GRANTED BECAUSE THE STATE FAILED TO
            PRESENT ANY EVIDENCE THAT DEFENDANT
            CAUSED THE RELEVANT INJURY.

            POINT III

            THE EVIDENCE OF HEALING FRACTURES WAS
            EITHER INTRINSIC OR ENTIRELY IRRELEVANT
            AND HIGHLY PREJUDICIAL.          THE COURT
            ERRED IN FAILING TO PROVIDE A LIMITING
            INSTRUCTION. (Not Raised Below).

            POINT IV

            THE COURT ERRED IN ALLOWING A DOCTOR
            TO TESTIFY AS AN EXPERT WITHOUT BEING
            PROPERLY QUALIFIED, AND FURTHER ERRED

                                                                        A-0407-16T4
                                         3
            IN ALLOWING THE SAME DOCTOR TO TESTIFY
            TO THE ULTIMATE ISSUE. (Not Raised Below).

            POINT V

            THE    COURT           ERRED   IN  IMPOSING
            CONSECUTIVE           SENTENCES,  AND   THE
            SENTENCE IS           OTHERWISE MANIFESTLY
            EXCESSIVE.

                                        I.

      We begin by addressing defendant's challenge to his confession.           He

argues that the detectives lied to him about the victim's injuries, they told him

that the assistant prosecutors would never believe his claim that he did not know

what had happened, and that the detectives improperly suggested that they

would "go to bat" for him if he provided a statement. Defendant contends

therefore that his confession was involuntary, the judge erred by admitting it,

and we should vacate the convictions.

      Defendant initially told the detectives that he had the victim propped up

on a pillow and went into the kitchen for one or two minutes. When he returned

to the room, defendant said that she was in the same position, but she had started

gagging on a Cheerio and did not look right. He said he picked her up and

started to hit her back for about thirty seconds to a minute, but then she became

completely limp.    Defendant told the detectives he tried to revive her by


                                                                          A-0407-16T4
                                        4
breathing into her mouth and doing chest compressions, and that he called

9-1-1.

         During the interview, the detectives left the room and spoke on the

telephone with a doctor. They then returned and informed defendant that the

doctor advised them that the situation was "much more worse" than they

previously thought because the victim had "many more broken bones." The

detectives told defendant that the victim had broken bones "[a]ll over" and that

they could have occurred within the last week. The detectives told defendant

that someone had "brutally beat, and kicked and [threw]" her, or she was "either

kicked, thrown, [or] dropped down a flight of steps."       Defendant told the

detectives that he "never threw [his] child," "hurt [his] child," or "threw her

down a flight of stairs." They probed further:

              DETECTIVE: You know what I think? I think there
              was an accident . . . and you're afraid to say it.

              DETECTIVE 2: That something happened, you just
              didn't [want to] tell your wife. That's all right.

              DETECTIVE: If it was an accident–

              DETECTIVE 2: I would [want to] fight for someone['s]
              rights that's not here right now to fight for.

              DETECTIVE: [Y]ou need to speak up–



                                                                        A-0407-16T4
                                       5
            DETECTIVE 2: I want you to tell me what the hell is
            going on here before we have to continue to go through
            this.

                  ....

            DETECTIVE: [P]lease listen to me. Please listen. If
            you don't be a voice for [the victim] and tell us what
            happened, whether you did something, or something
            else happened, if it was an accident, you know, all that
            stuff is taken into consideration. But I'm telling you,
            when we take this down to the bosses, [they're going to]
            hang somebody's head. All right? If they hang you
            with a homicide . . . then all bets are off, and you're just
            [going to] have to fight it out.

                   If there was an accident, that's what you need to
            tell us because if that's what happened, that is a much,
            much, much easier thing to explain to the bosses than
            you have no idea what happened to your daughter. The
            bosses don't want to hear that. The prosecutors will not
            accept an ["]I don't know["] answer. The only thing
            they will accept is a logical, heartfelt explanation for a
            father who loves his daughter and something tragically,
            accidentally happened. Other than that, dude, you are
            f[*****], and you can't let it be like that. You have to
            be her voice now.

      In response, defendant informed the detectives that he accidently hurt the

victim, and acknowledged that he knew he could request a lawyer.               The

detectives at that point told defendant they would "go to bat for him" and try to

work with him:




                                                                           A-0407-16T4
                                         6
DEFENDANT: I'm telling you I did not do anything
intentionally . . . to my daughter and I never did—and
I'd never intentionally hurt her. It kills me inside.

      ....

DEFENDANT: And I never intentionally did anything
to hurt her, but I was so scared . . . because I didn't know
what was [going to] happen. I didn't want my—you're
right. I did not want my wife to know, and find out, but
it was an accident.

DETECTIVE: Tell us what happened.

      ....

DEFENDANT: I mean, I don't know—I'm just telling
you—you're right. I mean, . . . I could get a lawyer right
now, and I know that, but I don't—I don't want one. I
mean at this point now I don't want one. . . .

      ....

DETECTIVE: You just need to tell us what happened.

DEFENDANT: I'm telling you . . . I didn't intentionally
do this and . . . I killed my child, but I didn't intend it,
and that, you know, it wasn't by a purposeful action. It
was an accident.

      ....

DEFENDANT: [L]ike I said, . . . I mean, if I wanted
to, I could have gotten a lawyer and I could have said
["]I plead the Fifth["] right now, and ["]I'm not saying
another word,["] . . . I had to get it out . . . for my
daughter.


                                                               A-0407-16T4
                             7
                   ....

            DEFENDANT: And like I said, . . . I know I'm being
            recorded, and people are seeing this or whatever.

                   ....

            DETECTIVE: We will work with you. All right?
            We're not heartless.

            DEFENDANT: I did not do this on purpose.

            DETECTIVE: [J]ust tell us what happened. We can't
            help you unless we know the truth and we'll know what
            happened.

                   ....

            DETECTIVE: We'll go to bat for you.

      Defendant then told the detectives his wife was "never [going] to forgive

[him] because she's [going] to wonder why [he] lied, why [he] didn't . . . just say

the truth in the beginning." Defendant said:

            [T]here was a time, when I was, you know, coming
            down the stairs and I dropped her, and I dropped her
            and she—I tried to, you know, stop it, but I couldn't
            help it and she—we have a hard floor, and a high set of
            stairs, and I dropped her, but she seemed okay. I mean,
            I would have taken her to a doctor right away. She
            seemed okay. I mean, she was crying and really fussy,
            and . . . she seemed okay. And . . . I was scared to death.
            And I mean, I'm just telling—I mean, honest to God, I
            never would intentionally hurt my child, and that—you
            know, the day that [the victim went into cardiac arrest],
            I had her on my knee and I was bouncing her on my

                                                                           A-0407-16T4
                                        8
            knee, like, you know, playing with her, and she went—
            and that's when I was playing with her, and she just
            went . . . and that's when I tried to save her . . . . I don't
            know what happened, but I guess . . . I shook her too
            hard, when I did that, and . . . she went into cardiac
            arrest, apparently, now that I know.

      The detective asked defendant if he became "frustrated with [the victim's]

crying" and shook her. Defendant reiterated that he "had previously fallen [and]

dropped her down the stairs when [he] was coming down" approximately one

week and one-half prior to the victim's death. Defendant elaborated that the

victim "landed right on that hard floor down at the bottom [of the stairs], and

[he] kind of tripped a little bit when [he] dropped her and landed a little on top

of her." He stated that his shoulder fell on top of her leg, but that he caught

himself and did not hit her hard.

      Defendant again acknowledged he knew he could request a lawyer by

stating, "I could have said I want a lawyer and I don't [want to] talk to you . . .

I'm just telling you. I'm telling you as a father, you know, because [the victim

did not] deserve this . . . obviously, I'm still [going to] need one now." After

recounting these events, the detective told him, "We'll go to bat for you. I can't

promise [you] anything, but we'll definitely go to bat for you." Defendant asked

how he could get a lawyer, and the detectives stopped questioning him.



                                                                             A-0407-16T4
                                          9
      The judge allowed defendant's statement into evidence on the State's

pretrial motion. "[O]n appellate review, a trial court's factual findings in support

of granting or denying a motion to suppress must be upheld when 'those findings

are supported by sufficient credible evidence in the record.'" State v. S.S., 229

N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). After

a testimonial hearing, "appellate courts defer to the trial court's factual findings

because the trial court has the 'opportunity to hear and see the witnesses and to

have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid.

(quoting State v. Elders, 192 N.J. 224, 244 (2007)). This deference extends to

a trial court's determinations based on the review of a video, like here, because

of the trial court's "experience and expertise in fulfilling the role of factfinder."

Id. at 380. We "should not disturb a trial court's factual findings unless those

findings are 'so clearly mistaken that the interests of justice demand intervention

and correction.'" Id. at 374 (quoting Gamble, 218 N.J. at 425). The trial court's

interpretation of the law and "the consequences that flow from established facts

are not entitled to any special deference." Gamble, 218 N.J. at 425.

      "The right against self-incrimination is guaranteed by the Fifth

Amendment to the United States Constitution and [New Jersey]'s common law,

now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, [Rule] 503."


                                                                             A-0407-16T4
                                        10
S.S., 229 N.J. at 381 (quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)).

The State must establish beyond a reasonable doubt that the statement was

voluntary and, if the defendant was in custody, that he was advised of his

Miranda1 rights and "knowingly, voluntarily and intelligently waived" those

rights. State v. W.B., 205 N.J. 588, 602 n.3 (2011); Nyhammer, 197 N.J. at 388.

"Miranda safeguards come into play whenever a person in custody is subjected

to either express questioning or its functional equivalent." State v. Hubbard,

222 N.J. 249, 267 (2015) (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01

(1980)).

       On the State's motion, defendant did not argue that the detectives failed to

give him his Miranda rights. Indeed, the judge found that defendant understood

those rights and acknowledged he could request an attorney or stop talking if he

chose to do so, which is exactly what he did at the end of his statement. Instead,

he argued that he had been tired when he gave the statement, and that he did so

within several hours of the victim's death. Nevertheless, the judge found that

defendant never indicated he was unable to give the statement. After watching

the confession video, the judge observed defendant was not falling asleep or



1
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                                                           A-0407-16T4
                                       11
having trouble concentrating. To the contrary, the judge found that defendant

was "very talkative" and fully engaged.

      Defendant now contends that his statement was coerced and therefore

involuntary. A statement is considered voluntary if it is "the product of an

essentially free and unconstrained choice by its maker." State v. P.Z., 152 N.J.

86, 113 (1997) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26

(1973)). If the defendant's "will has been overborne and his capacity for self-

determination critically impaired," the use of the statement "offends due

process." Ibid. (quoting Schneckloth, 412 U.S. at 225-26).

      When determining whether a statement is voluntary, the judge examines

"the totality of the circumstances to assess whether the waiver of rights was the

product of a free will or police coercion." Nyhammer, 197 N.J. at 402. Factors

to consider in this approach include the defendant's "age, education and

intelligence, advice as to constitutional rights, length of detention, whether the

questioning was repeated and prolonged in nature and whether physical

punishment or mental exhaustion was involved." State v. Presha, 163 N.J. 304,

313 (2000). The judge should also consider the elapsed time between the

police's administration of the Miranda rights and the defendant's statement.

State v. Timmendequas, 161 N.J. 515, 614 (1999).


                                                                          A-0407-16T4
                                       12
      Although courts should consider misrepresentations made by police

officers when analyzing the totality of the circumstances, "misrepresentations

alone are usually insufficient to justify a determination of involuntariness or

lack of knowledge." State v. Cooper, 151 N.J. 326, 355 (1997). Additionally,

"a misrepresentation by police does not render a confession or waiver

involuntary unless the misrepresentation actually induced the confession." Ibid.

Officers "may employ deception or trickery in an interrogation of a suspect

unless such deception or trickery was calculated to produce an untruthful

confession or was offensive to due process." State v. Baylor, 423 N.J. Super.

578, 588-89 (App. Div. 2011). "[U]se of a psychologically-oriented technique

during questioning is not inherently coercive," and "[t]he real issue is whether

the person's decision to confess results from a change of mind rather than from

an overbearing of the suspect's will." State v. Galloway, 133 N.J. 631, 654-55

(1993).

      A police officer's "promise that statements made will not be used against

the defendant purports to remove the specter of proving one's own guilt by

making a statement. Such a promise is a . . . powerful one, going to the heart of

a declarant's reservations about giving a statement." State v. Pillar, 359 N.J.

Super. 249, 273 (App. Div. 2003); accord State v. Fletcher, 380 N.J. Super. 80,


                                                                         A-0407-16T4
                                      13
92 (App. Div. 2005). If a defendant could "reasonably believe that the promise

of an 'off-the-record conversation' 'meant that the statement would not be used

against him,'" then "such a promise 'had the likelihood of stripping [the]

defendant of his 'capacity for self-determination' and actually induced the

incriminating statement." Fletcher, 380 N.J. Super. at 91-92 (quoting Pillar, 349

N.J. Super. at 272-73). "If [a] defendant believed that his statement could not

be used against him, despite the earlier Miranda warnings, his statement made

as a result of that false assurance could not be a free and voluntary one." Pillar,

359 N.J. Super. at 273. Moreover, whether an investigator's statement amounts

to a promise must be viewed from the defendant's perspective. Id. at 272.

      We have previously found a defendant's statement was voluntary even

though the detectives had "engaged in some deception." Baylor, 423 N.J. Super.

at 589. In Baylor, the defendant asserted that the detectives acted as if they were

his friends and cared about his welfare. He maintained that they erroneously

told him "that he faced the death penalty," and that they "reduced him to tears

by applying 'unrelenting pressure' on him to confess and/or name the shooter ."

Id. at 588. He contended that they "attributed statements to him that were

untrue" and that they "intended to 'trick' him into making inculpatory

statements." Ibid. He said they had "lied about the evidence and witnesses


                                                                           A-0407-16T4
                                       14
against him." Ibid. Even in light of these assertions, we affirmed the trial court's

admission of the defendant's statement. Id. at 590.

      Here, the record supports the judge's determination that defendant's

statement was voluntary under the totality of the circumstances. Although the

detectives may have employed some deceptive tactics in stating that they would

"go to bat" for defendant, that alone does not render his statement involuntary.

The detectives' statements here do not rise to the level of the facts in Fletcher

and Pillar, where the defendants were promised that their statements to

investigators would be "off-the-record." Fletcher, 380 N.J. Super. at 92; Pillar,

359 N.J. Super. at 273. Those situations are different because a detective

representing that a defendant's statements would be "off-the-record" suggests

that the defendant could make the statement with impunity. On the other hand,

a detective's use of the phrase "go to bat" for a defendant does not carry the same

connotation that a defendant would not face any consequences.

      We reject defendant's arguments that the detectives lied about the extent

and causes of the victim's injuries. The detective testified that he believed the

victim had a skull fracture at the time of the interrogation because the doctor

conveyed that information to him, even though he later learned that was

incorrect. He also testified that after he spoke with the doctor about the injuries,


                                                                            A-0407-16T4
                                        15
he "figured, due to those injuries" that it was "most likely" that the victim had

been brutally beaten, kicked, dropped, or thrown, even if the doctor did not

specifically tell him those were the causes. These statements are, therefore, not

outright lies as defendant argues. Even if they could have been misleading,

under the totality of the circumstances, the detective's remarks did not impair

defendant's decision-making. Cf. Baylor, 423 N.J. Super. at 588-89 (stating

officers "may employ deception or trickery in an interrogation" and affirming a

defendant's statement as voluntary where defendant alleged officers presented

themselves as friends and lied about evidence).

      Moreover, the detectives' statements that defendant would need to tell

them if the injuries were an accident did not render defendant's statement

involuntary. As the judge found, defendant stated multiple times throughout his

statement that he knew he could end the interrogation, remain silent, or request

an attorney, which demonstrated that he knew he did not have to provide a

statement to the detectives. Nonetheless, defendant continued to speak with the

detectives.

      Accordingly, the judge correctly found that defendant's waiver of his

Miranda rights was knowing, intelligent, and voluntary—and not the product of

coercion or official misconduct—in light of the totality of the circumstances,


                                                                         A-0407-16T4
                                      16
and that his statement to police was voluntary, and, thus, admissible.

                                      II.

      Defendant argues that the judge erred by denying two motions for

acquittal. He contends there was insufficient evidence regarding the victim's rib

fracture to support his conviction for endangering the welfare of a child. He

asserts that the State failed to present any evidence apart from defendant's police

statement to prove he broke the victim's rib, and that the statement cannot be the

sole evidence used to convict him of child endangerment.

      We apply the same standard the judge used when deciding a motion for

acquittal. State v. Moffa, 42 N.J. 258, 263 (1964). The standard is

            whether the evidence viewed in its entirety, and giving
            the State the benefit of all of its favorable testimony and
            all of the favorable inferences which can reasonably be
            drawn therefrom, is such that a jury could properly find
            beyond a reasonable doubt that the defendant was guilty
            of the crime charged.

            [State v. Tindell, 417 N.J. Super. 530, 549 (App. Div.
            2011).]

      That standard applies regardless of whether the motion was made during

trial under Rule 3:18-1, or after the jury returned a verdict under Rule 3:18-2.

Id. at 548-49. However, if the motion was made at the close of the State's case,

we do not consider any evidence adduced in the defendant's case. State v. Reyes,


                                                                           A-0407-16T4
                                       17
50 N.J. 454, 459 (1967); State v. Foreshaw, 245 N.J. Super. 166, 185 (App. Div.

1991). Rule 3:18-1 provides that after the State's case, "the court shall, on

defendant's motion or its own initiative, order the entry of a judgment of

acquittal of one or more offenses charged in the indictment . . . if the evidence

is insufficient to warrant a conviction."

      If the State relies on a defendant's confession, it must also "introduce

independent proof of facts and circumstances which strengthen or bolster the

confession and tend to generate a belief in its trustworthiness, plus independent

proof of loss or injury." State v. Lucas, 30 N.J. 37, 56 (1959); accord State v.

Reddish, 181 N.J. 553, 617 (2004). This requirement "avoid[s] the danger of

convicting a defendant solely out of his own mouth of a crime that never

occurred or a crime committed by someone else." State v. Johnson, 31 N.J. 489,

502-03 (1960). If the State is able to provide "'any legal evidence, apart from

the confession of facts and circumstances, from which the jury might draw an

inference that the confession is trustworthy,'" then the trial court should "refuse

to grant a judgment of acquittal on these grounds." Reddish, 181 N.J. at 617

(quoting Lucas, 30 N.J. at 62).

      Pursuant to N.J.S.A. 2C:24-4(a)(2), which addresses child endangerment:

            Any person having a legal duty for the care of a child
            or who has assumed responsibility for the care of a

                                                                           A-0407-16T4
                                       18
            child who causes the child harm that would make the
            child an abused or neglected child . . . is guilty of a
            crime of the second degree.

The State must "prove defendant acted 'knowingly' to convict him of

endangering the welfare of a child[.]" State v. Overton, 357 N.J. Super. 387,

393 (App. Div. 2003). Indeed, the judge instructed the jury:

            To find . . . defendant guilty of [endangering the welfare
            of a child], the State must prove beyond a reasonable
            doubt these elements: 1) [t]hat [the victim] was a child;
            2) [t]hat defendant knowingly caused the child harm
            that would make the child abused or neglected; 3) [t]hat
            defendant knew such conduct would cause the child
            harm that would make the child abused or neglected; 4)
            [t]hat defendant had a legal duty for the care of the child
            or had assumed responsibility for the care of the child.

                  ....

                    A person acts knowingly with respect to the
            nature of his conduct or the attendant circumstances if
            he is aware that the conduct is of that nature or that such
            circumstances exist or the person is aware of a high
            probability of their existence. A person acts knowingly
            with respect to a result of the conduct if [he] is aware
            that it is practically certain that such conduct will cause
            a result.

                  ....

                  It is within your power to find that such proof [of
            knowledge] has been furnished beyond a reasonable
            doubt by inferences which may arise from the nature of
            his acts and conduct and from all he said and did at the


                                                                          A-0407-16T4
                                       19
              particular time and place and from all surrounding
              circumstances established by the evidence.

      After the State rested its case, defendant moved for a judgment of

acquittal. In denying the motion, the judge found that there was a substantial

amount of medical testimony, which when viewed in favor of the State, indicated

that the victim suffered trauma inflicted while in defendant's care. The judge

stated that, although the evidence was circumstantial, "the jury could certainly

find, beyond a reasonable doubt, that these injuries were caused by . . .

defendant."

      At the sentencing hearing, defendant argued the merits of his second

acquittal motion. The judge noted that according to defendant's statement to

detectives, he dropped the victim down the stairs and accidently fell on top of

her about a week or so before she stopped breathing, and yet he did not seek

medical treatment for her or advise his wife of the occurrence. Additionally,

there was medical evidence corroborating that the rib fracture occurred between

one to six weeks before admission into the hospital. The judge, therefore, denied

the motion for a judgment of acquittal and concluded that there was "little

question that having been presented with these facts, the jury could have found

. . . defendant endangered the welfare of" the victim, and that the jury did make

such a finding.

                                                                         A-0407-16T4
                                      20
      Although the State relied on defendant's statement, it also presented expert

medical testimony to support the timing and manner that the rib fracture

occurred. Even though the medical experts disagreed on the specific age of the

rib fracture, the evidence suggested that it occurred at least one week prior to

the victim's hospitalization. The jury heard all of the testimony and could

reasonably conclude that defendant caused the rib fracture when he dropped her

down the stairs.

                                        III.

      We reject defendant's argument that the judge should have instructed the

jury that it could not consider evidence of the victim's arm and leg fractures

unless it found that those fractures were inflicted at the time of the brain injury.

      Defendant had argued that the evidence of the arm and leg fractures were

inadmissible under N.J.R.E. 404(b), and he moved to exclude that evidence, for

a mistrial, and for a new trial. The judge admitted this evidence, however, based

on the State's theory of the case that the victim's arm and leg fractures occurred

at the same time as her brain injury and, therefore, were intrinsic to the charged

offenses. The judge reasoned that those fractures "while uncharged, are part and

parcel of the State's allegation of [s]haken [b]aby [s]yndrome," and according to

the State would "directly prove the charged offense and/or be performed


                                                                            A-0407-16T4
                                        21
contemporaneously with" or facilitate the charged crime. The judge stated that

the connection of the arm and leg fractures to the charged crime was a question

of fact for the jury and, that it would not be unduly prejudicial under the facts

of the case for the jury to consider the evidence.

      Defendant acknowledged, however, that details about the fractures on the

victim's arms and legs were intrinsic evidence and that it "was a permissible

basis to admit evidence of these fractures." But he asserts that the possibility

that the evidence might be intrinsic, rather than evidence of other crimes

admissible under Rule 404(b), "did not relieve the [judge] of its obligation to

provide a limiting instruction" and the failure to do so unduly prejudiced him.

      Because defendant did not request a limiting instruction, we review his

contentions for plain error. R. 2:10-2. See also State v. Cole, 229 N.J. 430, 455-

56 (2017) (finding no plain error where a trial court did not sua sponte charge a

jury with limiting instructions). Additionally, Rule 1:7-2 states that "no party

may urge as error any portion of the charge to the jury or omissions therefrom

unless objections are made thereto before the jury retires to consider its

verdict[.]" Although the Supreme Court recognizes "the ordinary reluctance of

reviewing courts to reverse on the grounds of plain error when no objection to a

charge has been made," the Court has "repeatedly emphasized that incorrect


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instructions of law are poor candidates for rehabilitation under the harmless

error theory." State v. Weeks, 107 N.J. 396, 410 (1987).

      Proper instructions are essential to a fair trial. State v. Green, 86 N.J. 281,

287 (1981). If evidence of other crimes is admitted under Rule 404(b), the trial

court should issue a limiting instruction, even if the defense does not request a

limiting instruction. State v. Clausell, 121 N.J. 298, 323 (1990). See also Agha

v. Feiner, 198 N.J. 50, 63 n.7 (2009) (stating that "[e]ven in the absence of a

request, the judge should give a limiting instruction sua sponte where it is

necessary to avoid an unjust result").

      Nevertheless, when a court is "reviewing any claim of error relating to a

jury charge, the 'charge must be read as a whole in determining whether there

was any error,' and the effect of any error must be considered 'in light of the

overall strength of the State's case.'" State v. Gonzalez, 444 N.J. Super. 62, 70-

71 (App. Div. 2016) (first quoting State v. Torres, 183 N.J. 554, 564 (2005),

then quoting State v. Walker, 203 N.J. 73, 90 (2010)). If an error regarding the

jury charge is harmless and there is "no indication that the jury was misled by

the error," then the jury charge may not warrant a reversal. State v. Docaj, 407

N.J. Super. 352, 369 (App. Div. 2009).




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      Even if evidence constitutes "uncharged misconduct that would normally

fall under Rule 404(b)," if it is "intrinsic to the charged crime [it] is exempt from

the strictures of Rule 404(b) . . . because it is not evidence of other crimes,

wrongs, or acts." State v. Rose, 206 N.J. 141, 177 (2011) (citation and internal

quotation marks omitted). Rather, intrinsic evidence need only satisfy the Rule

403 balancing test and the relevancy evidence rules. Id. at 177-78. Rule 403

permits relevant evidence "unless its probative value is substantially outweighed

by a negative feature of the evidence[.]" Id. at 178. See also State v. Santamaria,

___ N.J. ___ (2019) (slip op. at 23) (stating that "if evidence is found to be

intrinsic to the crime at issue, it does not constitute other-acts evidence and is

subject only to the limits of Rule 403").

      To determine if evidence is "intrinsic," our Supreme Court adopted the

test articulated in United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010),

which limits intrinsic evidence to "two narrow categories of evidence." Rose,

206 N.J. at 180; State v. Brockington, 439 N.J. Super. 311, 327 (App. Div.

2015). "The first category applies to evidence that 'directly proves' the charged

offense," and the "operative factor is whether the evidence has probative value

as to the charged offense." Brockington, 439 N.J. Super. at 327. The second

category    defines   intrinsic   evidence    as   "uncharged     acts   performed


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                                        24
contemporaneously with the charged crime [that] . . . facilitate the commission

of the charged crime." Rose, 206 N.J. at 180.

      The judge admitted the arm and leg fracture evidence as intrinsic evidence

because he found the State presented those uncharged acts as part and parcel to

the charged crime, and as direct proof of the charged crime. Defendant also

acknowledged that this evidence was properly admitted as intrinsic evidence.

Therefore, it was "exempt from the strictures of Rule 404(b)" and did not require

a limiting instruction. Rose, 206 N.J. at 177.

                                     IV.

      Defendant asserts for the first time that the doctor who treated the victim

at the hospital improperly testified as an expert—even though the State called

him as a fact witness—without being qualified as such, and that his testimony

went to the ultimate issue of the case—that the victim was abused. Defendant

argues that the judge erred by not issuing "adequate instructions on how to

evaluate [the doctor's] opinions." Defendant contends therefore that he received

an unfair trial.

      We review evidentiary rulings for abuse of discretion. State v. Feaster,

156 N.J. 1, 82 (1998). A trial court's evidentiary ruling must be upheld unless

the appellant shows that the court's "finding was so wide of the mark that a


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manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

Additionally, when there is no objection (like here), we usually disregard an

error not raised unless we find plain error—that is, error that is "clearly capable

of producing an unjust result." R. 2:10-2. This possibility of "an unjust result

must be 'sufficient to raise a reasonable doubt as to whether the error led the jury

to a result it otherwise might not have reached.'" State v. Williams, 168 N.J.

323, 336 (2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Moreover,

"no party may urge as error any portion of the charge to the jury or omissions

therefrom unless objections are made thereto before the jury retires to consider

its verdict[.]" R. 1:7-2.

      Courts distinguish between expert witnesses and treating physicians

because "[u]nlike an expert retained to testify at trial, the treating doctors gained

no confidential information about plaintiffs' trial strategy."         Stigliano v.

Connaught Labs., Inc., 140 N.J. 305, 313-14 (1995). Our Supreme Court has

stated that "[s]ubject to the notice and discovery requirements of our court rules

and the requirements of [Rule] 701 and other Rules of Evidence, our case law

authorizes a trial court to admit the testimony of a treating physician regarding

the diagnosis and treatment of a patient." Delvecchio v. Twp. of Bridgewater,

224 N.J. 559, 563 (2016). The treating physician's testimony is, nonetheless,


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                                        26
"subject to an important limitation." Id. at 579. That is, "[u]nless the treating

physician is retained and designated as an expert witness, his or her testimony

is limited to issues relevant to the diagnosis and treatment of the individual

patient." Ibid.

      While treating physicians "are doubtless 'experts,'" they are "more

accurately fact witnesses" where "[t]heir testimony relates to their diagnosis and

treatment" of the patient.      Stigliano, 140 N.J. at 314.         A physician's

determination of the cause of a condition "partakes of both fact and opinion,"

and the "critical point is that the treating doctors to treat their patients must

determine the cause of a disease, whether that determination is characterized as

fact or opinion." Ibid. Accordingly,

            [a]s fact witnesses, the treating doctors may testify
            about their diagnosis and treatment of [an injury],
            including their determination of that [injury's] cause.
            Their testimony about the likely and unlikely causes of
            [a patient's injury] is factual information, albeit in the
            form of opinion. Because the determination of the
            cause of a patient's illness is an essential part of
            diagnosis and treatment, a treating physician may
            testify about the cause of a patient's disease or injury.

            [Ibid. (citation omitted).]

      Here, the doctor treated the victim for her cardiac arrest, fractures, and

related injuries, the causes of which were relevant to his diagnosis and treatment.


                                                                           A-0407-16T4
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His personal observations, diagnosis, and testimony about potential causes of

the victim's injuries, as a treating physician, have been explicitly approved by

the Court, as long as it is in accordance with the notice and discovery

requirements and the rules of evidence.       See Delvecchio, 224 N.J. at 563;

Stigliano, 140 N.J. at 314.

      The doctor testified consistently with Rule 701, which permits his

"opinions or inferences" that are "(a) rationally based on the perception of the

witness and (b) will assist in understanding the witness' testimony or in

determining a fact in issue." In diagnosing and treating the victim's injuries, and

in concluding that there were multiple signs leading to abuse, he referred—

without objection—to the victim's lungs and heart "explod[ing]" and

"sw[e]ll[ing]," the amount of "pulmonary edema [that existed] afterward," the

"blood on [her] brain," the "massive retinal hemorrhages," and the amount of

bleeding behind her eyes. The doctor's fact-witness testimony did not usurp the

jury's function, opine about defendant's guilt or innocence, or bolster the

testimony from other witnesses.

                                        V.

      Finally, defendant argues that the sentencing judge erred by imposing

consecutive sentences, which he contends is excessive. She sentenced defendant


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to eight years in prison on Count One, subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. On Count Four, she imposed a consecutive eight-

year prison term. The aggregate prison term was sixteen years in prison, subject

to the NERA imposition on Count One.

      An appellate court applies "a deferential standard of review to the

sentencing court's determination, but not to the interpretation of a law." State

v. Bolvito, 217 N.J. 221, 228 (2014). "Appellate review of sentencing decisions

is relatively narrow and is governed by an abuse of discretion standard." State

v. Blackmon, 202 N.J. 283, 297 (2010). An appellate court may not "substitute

[its] judgment for those of our sentencing courts." State v. Case, 220 N.J. 49,

65 (2014).

      The sentencing judge found aggravating factors three, N.J.S.A. 2C:44-

1(a)(3) (risk of reoffending); six, N.J.S.A. 2C:44-1(a)(6) (prior record); and

nine, N.J.S.A. 2C:44-1(a)(9) (need to deter). She found no mitigating factors

and concluded that the aggravating factors substantially outweighed the non-

existent mitigating factors.

      The sentencing judge imposed consecutive sentences in accordance with

State v. Yarbough, 100 N.J. 627, 643 (1985). Five factors that a court should




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consider in determining whether to impose a concurrent or consecutive sentence

are:

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

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

              (c) the crimes were committed at different times or
              separate places, rather than being committed so closely
              in time and place as to indicate a single period of
              aberrant behavior;

              (d) any of the crimes involved multiple victims;

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

              [State v. Molina, 168 N.J. 436, 441-42 (2001) (quoting
              Yarbough, 100 N.J. at 644).]

These factors "should be applied qualitatively, not quantitatively." State v.

Carey, 168 N.J. 413, 427 (2001). As to the imposition of consecutive sentences,

she stated:

                    Crimes committed by [defendant] occurred on
              wholly separate and distinct dates. Count One and Two
              pertain to an incident that took place on February 16[,]
              2012. Count Four, endangering the welfare of a child,
              took place on February 10[,] 2012. This is a wholly
              separate and distinct act for which [defendant] was
              convicted. . . . [T]hese are separate and distinct crimes.
              They are independent of each other, . . . [the] [c]rimes
              and their objectives on each of these dates were

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                                         30
            independent. They involved separate acts and the
            crimes were committed at different times and different
            places.

                  There are three offenses for which [defendant
            was] found guilty. Thus, the [c]ourt find[s] consecutive
            sentences are appropriate as to some of the crimes for
            which [defendant is] being sentenced.

      We are satisfied that in applying the sentencing guidelines, the judge gave

adequate reasons to support the sentence, the sentence is not manifestly

excessive or unduly punitive, and it does not constitute an abuse of discretion.

See State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Cassady, 198 N.J. 165,

180-81 (2009); State v. Roth, 95 N.J. 334, 362-63 (1984).

      We conclude that defendant's remaining arguments—to the extent that we

may not have addressed them—are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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