STATE OF NEW JERSEY VS. CHARLES M. LOWY (18-07-0573, HUDSON COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-0898-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHARLES M. LOWY,

     Defendant-Appellant.
_______________________

                   Submitted January 25, 2021 – Decided February 16, 2021

                   Before Judges Fasciale and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 18-07-0573.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michele A. Adubato, Designated Counsel,
                   on the brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Erin M. Campbell, Assistant Prosecutor,
                   on the brief).

PER CURIAM
      Defendant appeals from a July 23, 2019 judgment of conviction for

reckless manslaughter and the sentence imposed. He also appeals from the

denials of his motion to suppress his statement to the police and motion to strike

portions of the medical examiner's testimony. We affirm.

      The uncontested facts are taken from the trial testimony. Defendant lived

near Pershing Field Park in Jersey City, where he went nearly every day to feed

the pigeons. At sixty-eight years of age, defendant suffered health problems,

including spinal stenosis, and required a cane to walk.

      The victim and his wife lived adjacent to Pershing Field Park. The victim,

age seventy-seven, frequently took a morning walk in the park with a cup of

coffee. According to his wife, the victim loved the park. He enjoyed walking

in the park for exercise and watching the baseball players. Occasionally, the

victim would sneak a cigarette in the park.

      On April 15, 2017, at around 7:00 a.m., defendant went to the park to feed

the birds. There were signs posted throughout the park prohibiting bird feeding.

A park employee saw defendant that morning and warned him there was a fine

for feeding the birds. The park employee recognized defendant as he came to

the park nearly every day to feed the birds.       Although the park employee




                                                                            A-0898-19
                                        2
repeatedly warned defendant not to feed the birds, he never reported defendant's

violation of the park rules.

      That same morning, the victim went for a walk in the park. Prior to

leaving the house, the victim told his wife someone was feeding the birds

contrary to park policy. The victim believed feeding the birds was unsanitary

and the scattered birdseed attracted rats.

      Jeffrey Eitel was walking his dogs in the park that morning and saw two

older men fighting. Eitel kept his distance because he thought the men were

homeless or drunk. He described one man as "wearing a spring jacket . . . shiny

like a windbreaker[,]" while the other was wearing a red hoodie and blue jeans

and "had a cane on the ground next to him." 1

      Eitel heard the victim scream, "Call 9-1-1. He's got a knife. Call 9-1-1."

He witnessed the victim holding defendant's arm, trying to push defendant away.

According to Eitel, the two men were wrestling and throwing punches. Eitel

placed the 9-1-1 call. He told the operator he was unsure whether there was a

knife involved in the altercation but stated two men had been fighting, and a

man wearing a red hoodie left the scene. Initially, Eitel reported to the operator



1
   According to the eyewitness, the victim wore the windbreaker jacket and
defendant wore the red hoodie.
                                                                            A-0898-19
                                        3
the victim had blood on his hands but quickly realized the victim "had taken

wounds to the chest and that th[e] blood on his hands was probably from his

chest wounds." Eitel requested immediate medical assistance. The operator

instructed pressure be applied to the victim's injuries until help arrived.

      Patrick Ryan was in the park for a morning run when he saw two men

"wrestling" and the victim "trying to hold [defendant] down." Ryan recognized

the victim, having seen him often in the park "smoking a cigarette and . . .

drinking coffee." As Ryan passed the men, the victim called out, "Hey, buddy,

can you give me a hand? This guy's got a knife." Ryan said the victim was "in

distress . . . fighting for his life." When he got closer, Ryan saw defendant "on

his stomach and just laying there with a knife in his hand" while the victim held

defendant down. Ryan instructed defendant to "[p]ut the knife down and get out

of here." At that point, the victim released defendant. Defendant uttered some

words in German, put away a folding knife, and left the park.

      Ryan moved the victim to a bench. At first, Ryan only found cuts on the

victim's hands. Upon closer inspection, he noticed chest wounds and applied

pressure to the wounds in an effort to stop the bleeding. Soon after, the victim

lost consciousness. Emergency services personnel arrived and took the victim

to a local hospital where he died at 9:04 a.m.


                                                                              A-0898-19
                                         4
      A third witness, Lee Alan Barrett, was in the park during the incident.

While walking his dog, he saw the victim and defendant engaged in a physical

altercation and remained at the scene as the events unfolded.

       Following the incident, a detective went to the park, took pictures of the

crime scene, and conducted a sweep.         In addition, the detective went to

defendant's apartment where she recovered a couple of rings, a knife with a

reddish stain, and clothing, which included a pair of blue and orange sneakers

and a damp red-hooded sweatshirt and jeans.

      Frederick DiCarlo, M.D., a medical examiner, performed the autopsy on

the victim. According to the autopsy results, the victim suffered two stab

wounds, one to the "midchest" and the other to "the upper left chest near the

midline." DiCarlo concluded the wounds were inflicted with "single-edged

knife[,]" meaning one side of the knife was blunt and the other side was sharp.

He also noted abrasions on the victim's knees. DiCarlo determined the cause of

death was "homicide" from "stab wounds of the chest." He explained one stab

wound did not breach the chest wall, but the other wound cut the lung, which

resulted in blood loss, compromising the victim's breathing and organ shutdown.

Although not contained in the autopsy report, at trial, DiCarlo testified, "[B]ased

on these injuries and the circumstances surrounding the incident, the injuries


                                                                             A-0898-19
                                        5
were, to a reasonable degree of medical certainty, inflicted while [the victim and

defendant] were facing each other."

      During the initial investigation, defendant's neighbor gave the police a

video depicting a man using a knife to cut ropes on a tree in the neighbor's yard

a year before the altercation in the park. Based on the description of the knife

wielding assailant provided by the police, the neighbor recalled the video

recording. He told the police the man in the recording lived at the same address

as defendant and "fed the birds . . . ."

      Defendant was arrested on April 18, 2017. While in custody, defendant

complained of back pain. Defendant went by ambulance to a local hospital,

accompanied by Detective John Mikhail. Mikhail testified, "At approximately

1:50 p.m., [while in the ambulance,] Mr. Lowy spontaneously uttered, 'I don't

know why I'm here. I was feeding the birds. I haven't left my house in five to

six days.' He also stated, 'this stays between us.'" While in the hospital, at about

3:15 p.m., defendant made additional statements to Mikhail and another officer.

He asked the officers, "Can you do an emergency killing and put me out of my

misery. I intended to just kill myself." According to Mikhail, defendant "placed

two hands on top of each other and brought [them] up to his neck."         Mikhail

told defendant it was "important to take care of his medical condition, and


                                                                              A-0898-19
                                           6
receive the appropriate medical treatment." The officers made no additional

statements to defendant either in the ambulance or at the hospital. Defendant

was treated, discharged the same day, and returned to police station.

      Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1)

or (a)(2) (count one), fourth-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(d) (count two), and third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4 (count three).

      Prior to trial, the State moved to introduce defendant's statements to the

police officers. An evidentiary hearing was held on December 7, 2018 and

continued on December 13, 2018. Detective Mikhail testified at the hearing.

The judge concluded defendant's statements were admissible because

"defendant initiated the conversation with Detective Mikhail unprompted and

voluntarily." The judge acknowledged defendant "invoked his right to remain

silent at the police precinct, but this [c]ourt cannot conclude that [the] police

failed to honor that right simply because defendant made an unprompted

statement or statements subsequent to his invocation." Under the circumstances,

the judge held the "[p]olice were not required to Mirandize defendant" and found

"the statements were made spontaneously and voluntarily by defendant." The




                                                                           A-0898-19
                                       7
judge issued an order on December 13, 2018, allowing the State to use

defendant's statements during the trial.

      Trial commenced on June 25, 2019. On July 23, 2019, the jury returned

a verdict of not guilty on all counts except for the lesser-included offense of

reckless manslaughter.

      Defendant was sentenced on October 4, 2019.            After analyzing the

applicable aggravating and mitigating factors, the judge imposed an eight-year

sentence with an eighty-five percent parole ineligibility.

      On appeal, defendant raises the following arguments:

      POINT I

            STATEMENTS MADE BY MR. LOWY AFTER HIS
            INVOCATION OF HIS RIGHT TO COUNSEL WAS
            A VIOLATION OF HIS FIFTH AMENDMENT
            RIGHT TO REMAIN SILENT AND SHOULD NOT
            HAVE BEEN ADMITTED INTO EVIDENCE.

      POINT II

            IT WAS ERROR FOR THE COURT TO DENY
            DEFENDANT'S MOTION TO STRIKE CERTAIN
            PARTS OF THE TESTIMONY OF THE MEDICAL
            EXAMINER WHICH HAD NOT BEEN DISCLOSED
            PRIOR TO TRIAL.

            A. Violation of the discovery rules.

            B. The expert's testimony exceeded the scope of his
            expertise.

                                                                          A-0898-19
                                           8
      POINT III

            CERTAIN COMMENTS BY THE PROSECUTOR
            DURING HER SUMMATION WERE GROSSLY
            IMPROPER AND MANDATE A NEW TRIAL.

      POINT IV

            THE COURT ERRED IN INCLUDING A FLIGHT
            INSTRUCTION IN ITS FINAL CHARGE TO THE
            JURY OVER THE DEFENDANT'S OBJECTION.

      POINT V

            A REMAND FOR RESENTENCING IS REQUIRED
            BECAUSE THE COURT ERRED IN WEIGHING
            THE   AGGRAVATING     AND   MITIGATING
            FACTORS IN IMPOSING ON DEFENDANT A
            SENTENCE OF EIGHT (8) YEARS WITH 85%
            PAROLE INELIGIBILITY. IT WAS EXCESSIVE
            AND SHOULD BE MODIFIED AND REDUCED.

      POINT VI

            THE AGGREGATE OF ERRORS                       DENIED
            DEFENDANT A FAIR TRIAL.

      We first consider defendant's argument the judge erred in admitting the

statements made to the police while he was in the ambulance and at the hospital.

Defendant contends the admission of the statements violated his Fifth

Amendment right to remain silent. We disagree.




                                                                          A-0898-19
                                       9
       After receiving the Miranda2 warnings at the police precinct, defendant

invoked his right to counsel. Shortly thereafter, defendant complained of pain

and was taken to the hospital in an ambulance accompanied by Detective

Mikhail. Defendant claims the detective had a duty to re-Mirandize him as soon

as he spoke in the ambulance because Mikhail knew defendant invoked his right

to counsel while at the police station.

       Our review of a trial court's grant or denial of a motion to suppress a

defendant's statement is deferential. State v. Vincenty, 

237 N.J. 122

, 131-32

(2019). If a trial court's findings are supported by sufficient, credible evidence

present in the record, our task is complete, and we should not disturb the result.

State v. Hubbard, 

222 N.J. 249

, 263 (2015). Deference is appropriate because

findings of fact "are substantially influenced by [an] opportunity to hear and see

the witnesses and to have the 'feel' of the case, which a reviewing court cannot

enjoy." State v. Johnson, 

42 N.J. 146

, 161 (1946). Findings of fact should only

be disregarded if they are "clearly mistaken" while "legal conclusions are

reviewed de novo." 

Hubbard, 222 N.J. at 263

.

         The Fifth Amendment guarantees no person "shall be compelled in any

criminal case to be a witness against himself . . . ." U.S. Const. amend. V. To


2
    Miranda v. Arizona, 

384 U.S. 436

(1966).
                                                                            A-0898-19
                                          10
effectuate the protections under the Fifth Amendment, individuals must be

advised of their right to remain silent or consult counsel when subject to

custodial interrogation. 

Miranda, 384 U.S. at 444

. These rights may be waived,

but only if done so "voluntarily, knowingly[,] and intelligently."

Ibid. If, however, rights

are unambiguously invoked, which may be done at any time,

questioning must cease immediately.

Id. at 444-45.

Once a person invokes the

right to remain silent, this choice must be "scrupulously honored" by

investigators. State v. Hartley, 

103 N.J. 252

, 255-56 (1986).

      While officers must scrupulously honor a suspect's invocation of his or

her rights, they have no obligation to re-Mirandize if statements are made

spontaneously by a defendant. State v. Fuller, 

118 N.J. 75

, 85 (1990) ("[I]n

defendant-initiated conversation following the exercise of the right to silence,

the police need not readminister the Miranda warnings as an indispensable

element of their duty scrupulously to honor that right."). "If an accused does

initiate a conversation after invoking his rights, that conversation may be

admissible if the initiation constitutes a knowing, intelligent, and voluntary

waiver of the accused's rights." State v. Chew, 

150 N.J. 30

, 61 (1997).

      Here, after invoking his right to counsel, defendant voluntarily spoke to

the officers in the ambulance and at the hospital.        His statements were


                                                                            A-0898-19
                                      11
unprompted and unprovoked by the officers. Importantly, after defendant spoke,

the officers did not respond other than to indicate medical aid would be rendered.

Based on these facts, the judge properly admitted defendant's statement to the

police.

      We are also satisfied the judge properly admitted defendant's utterances

as statements by a party opponent. A statement by a party opponent is "[a]

statement offered against a party which is: (1) the party's own statement, made

either in an individual or in a representative capacity . . . ." N.J.R.E. 803(b).

Statements made pursuant to N.J.R.E. 803(b)(1) constitute "competent

evidence" and are admissible. Ruroede v. Borough of Hasbrouck Heights, 

214 N.J. 338

, 358 (2013).

      Here, the statements uttered by defendant to the police while he was in the

ambulance and at the hospital were offered by the State to be used against

defendant at trial.     Under the circumstances, defendant's utterances were

admissible statements by a party opponent. 3


3
  In a single sentence in his merits brief, defendant also contends his statement
to the police regarding an "emergency killing" should have been excluded under
N.J.R.E. 403. However, defendant failed to explain the basis for this argument
and omitted any discussion of applicable law or the basis for his contention. See
Sklodowsky v. Lushis, 

417 N.J. Super. 648

, 657 (App. Div. 2011) ("An issue
not briefed on appeal is deemed waived.").


                                                                            A-0898-19
                                       12
      We next consider defendant's claim the judge erred in declining to strike

portions of the medical examiner's testimony. He argues Dr. DiCarlo's trial

testimony that defendant and the victim were "facing each other" at the time of

the stabbing was improper because it was not contained in the medical

examiner's expert report, not disclosed prior to trial by the State, and exceeded

the scope of the doctor's expertise. We reject these arguments.

      Rule 3:13-3 governs discovery in criminal matters and compels disclosure

of exculpatory information or material. The Rule requires disclosure of the

following:

             names and addresses of each person whom the
             prosecutor expects to call to trial as an expert witness,
             the expert's qualifications, the subject matter on which
             the expert is expected to testify, a copy of the report, if
             any, of such expert witness, or if no report is prepared,
             a statement of the facts and opinion to which the expert
             is expected to testify and a summary of the grounds for
             each point.

             [R. 3:13-3(b)(1)(I).]

      "[T]he purpose of pretrial discovery is to ensure a fair trial" because "[a ]

criminal trial where the defendant does not have 'access to the raw materials

integral to the building of an effective defense' is fundamentally unfair.'" State

in Interest of A.B., 

219 N.J. 542

, 556 (2014) (quoting Ake v. Oklahoma, 470



                                                                             A-0898-19
                                        

13 U.S. 68

, 77 (1985)). If a party fails to comply with discovery requirements, the

evidence sought to be admitted may be barred at trial. R. 3:13-3(f).

      "A trial court's resolution of a discovery issue is entitled to substantial

deference and will not be overturned absent an abuse of discretion." State v.

Stein, 

225 N.J. 582

, 593 (2016) (citing State v. Hernandez, 

225 N.J. 451

, 461

(2016)). However, if disposition of a discovery matter is "based on a mistaken

understanding of the applicable law[,]" deference is not afforded.

Ibid. (quoting Hernandez, 225

N.J. at 461).

      Having reviewed the record, we are satisfied the judge properly denied

defendant's motion to strike a portion of the medical examiner's trial testimony.

While Dr. DiCarlo's testimony, stating defendant and the victim were facing

each other at the time of the stabbing, was a surprise to both counsel, the

statement was not exculpatory. In addition, DiCarlo's statement was consistent

with his autopsy finding that the victim died as a result of the stab wounds.

Defense counsel also had the opportunity to speak with DiCarlo prior to his

testimony and then cross-examine the medical examiner at trial regarding his

statement.

      Further, based on DiCarlo's "surprise" testimony, the judge instructed the

jury could accept or reject the medical examiner's testimony, in whole or in part.


                                                                            A-0898-19
                                       14
Thus, any ill effects resulting from the medical examiner's testimony were

mitigated by the judge's jury instruction. On this record, the State did not violate

the discovery rules.

      Nor did the medical examiner's testimony regard the position of the victim

and defendant at the time of the stabbing exceed the scope of the doctor's

expertise. Defendant argues DiCarlo, as a pathologist, was limited to testifying

as to "manner and cause" of death and "was not qualified to opine on the physics

or outside forces that were at play during the incident."

      N.J.R.E. 702 provides:

             If scientific, technical, or other specialized knowledge
             will assist the trier of fact to understand the evidence or
             to determine a fact in issue, a witness qualified as an
             expert by knowledge, skill, experience, training, or
             education may testify thereto in the form of an opinion
             or otherwise.

There are three core requirements for determining the admissibility of expert

testimony:

             (1) the intended testimony must concern a subject
             matter that is beyond the ken of the average juror; (2)
             the field testified to must be at a state of the art such
             that an expert's testimony could be sufficiently reliable;
             and (3) the witness must have sufficient expertise to
             offer the intended testimony.

             [Townsend v. Pierre, 

221 N.J. 36

, 53 (2015) (quoting
             Creanga v. Jardal, 

185 N.J. 345

, 355 (2005)).]

                                                                              A-0898-19
                                        15
      "The admission or exclusion of expert testimony is committed to the

sound discretion of the trial court." 

Townsend, 221 N.J. at 52

(citing State v.

Berry, 

140 N.J. 280

, 293 (1995)). As such, "a trial court's grant or denial of a

motion to strike expert testimony is entitled to deference on appellate review[,]"

and we apply an abuse of discretion standard.

Id. at 52-53.

(first citing Bender

v. Adelson, 

187 N.J. 411

, 428 (2006); and then citing Pomerantz Paper Corp. v.

New Comty. Corp., 

207 N.J. 344

, 371-72 (2011)).

      Here, DiCarlo testified, "given the positioning of the victims, we're taking

into account the size of the victim and the defendant. So, based on these injuries

and the circumstances surrounding the incident, the injuries were, to a

reasonable degree of medical certainty, inflicted while the two people were

facing each other." The judge concluded Dr. DiCarlo's testimony was "based on

[his] training, and it [wa]s within his field, [and] based on his experience and

knowledge" as an experienced pathologist.

      DiCarlo's remarks regarding the position of the two men at the time of the

stabbing fell within his expertise as a pathologist determining the cause of death.

See State v. Locascio, 

425 N.J. Super. 474

, 492-93 (App. Div. 2012)

(determining the opinions and conclusions offered by a pathology expert

regarding the nature and cause of death were permissible but excluding

                                                                             A-0898-19
                                       16
testimony in the area of accident reconstruction and biomechanics as exceeding

the expert's qualifications). DiCarlo did not rely on any specialized knowledge

outside his expertise as a pathologist and the judge correctly denied defendant's

motion to strike his testimony as to the position of the men at the time of the

stabbing.

      We next consider defendant's claim certain comments by the prosecutor

during summation were improper, warranting a new trial. He contends the

prosecutor denigrated defense counsel's cross-examination of a witness,

improperly misstated the law, and inappropriately instructed the jury defendant

was guilty under the law. We are unpersuaded these statements were improper.

      Our court recognizes that "[p]rosecutors are afforded considerable leeway

in [summations] as long as their comments are reasonably related to the scope

of the evidence." State v. Cole, 

229 N.J. 430

, 457 (2017) (first alteration in

original) (quoting State v. Frost, 

158 N.J. 76

, 82 (1999)). They can "strike hard

blows . . . [but not] foul ones." State v. Echols, 

199 N.J. 344

, 359 (2009)

(alterations in original) (quoting State v. Wakefield, 

190 N.J. 397

, 436 (2007)).

It is just as much the prosecutor's duty "to refrain from improper methods

calculated to produce a wrongful conviction as it is to use every legitimate

means to bring about a just one." State v. Farrell, 

61 N.J. 99

, 105 (1972)


                                                                           A-0898-19
                                      17
(quoting Berger v. United States, 

295 U.S. 78

, 88 (1935)).            Prosecutorial

"misconduct does not warrant reversal unless it is 'so egregious that it deprived

the defendant of a fair trial.'" State v. Jackson, 

211 N.J. 394

, 409 (2012) (quoting

Frost, 158 N.J. at 83

)).

      Here, none of the prosecutor's statements during summation rose to a level

of egregiousness capable of rendering the trial unfair. During closing, the

prosecutor made the three statements in response to issues raised during trial.

      The first statement to which defendant objected was the prosecutor's

comment during closing argument that the name of the witness's dog was

irrelevant. During cross-examination, defense counsel sought to discredit the

State's witness who was walking a dog. Defense counsel repeatedly asked the

witness if the dog's name was "Archie" or "Rex." Based on the questions posed

by defense counsel during cross-examination of this witness, the prosecutor

sought to refocus the jury and establish the dog's name bore no relevance to the

witness's observation of the fight between defendant and the victim.

      Defense counsel also objected to the prosecutor's statement comparing the

use of a knife and a fist during a fight. In response to the defense counsel's

objection, the prosecutor noted the statement was "her argument to [the jury],

that [it] cannot equate a knife and fists." When instructed by the judge to clarify


                                                                              A-0898-19
                                        18
her statement, the prosecutor said, "You won't hear that from the judge. That's

my argument to you." While the prosecutor advocated how the law should be

applied, she never stated the jury must find defendant guilty. Further, the judge

told the jury "comments of the attorneys are not evidence" and "any comments

made by the attorneys . . . as to the law are not controlling."

      Finally, the prosecutor did not act improperly by stating defendant was

guilty because a prosecutor may "contend that the evidence proved defendant

guilty as charged." State v. Michaels, 

264 N.J. Super. 579

, 641 (App. Div. 1993)

(allowing the State to write the word "guilty" on a board during summation

because a prosecutor may make reasonable inferences, which the jury can either

accept or reject). Here, the prosecutor argued defendant was guilty "based on a

totality of the circumstances." Moreover, she told the jury "to follow the law"

and "to make a decision that's based on the evidence . . . not on the sympathy ."

Unlike the previous statements, defense counsel did not object to this statement

by the prosecutor. The lack of any objection to the statement suggests the

absence of any prejudice. State v. Ramseur, 

106 N.J. 123

, 323 (1987) ("If no

objection is made, the remarks usually will not be deemed prejudicial.").

      Even if the prosecutor's comments exceeded fair comment based on the

evidence, the judge's jury instructions provided a curative effect. See

ibid. A-0898-19 19 (holding

despite the prosecutor's improper comments, the judge's jury

instruction negated any ill effects); see also State v. Farmer, 

366 N.J. Super. 307

, 319 (App. Div. 2004) (citing State v. Cooper, 

151 N.J. 326

, 370 (1997))

("The jury is presumed to adhere to instructions, and [the court] must assume

the jury followed that mandate."). The judge instructed the jury on several

occasions that she would instruct them at the conclusion of the case regarding

the applicable law.

      We next consider defendant's argument the judge erred in instructing the

jury on flight. Defendant argues there was no credible evidence "[he] fled the

scene due to consciousness of guilty of the crime charged." He contends he left

the park because someone told him "get out of here." He also claims it was not

clear the victim had been seriously injured, suggesting there was nothing to

cause him to flee the scene.

      Our standard of review of jury charges is well settled. "[A]ppropriate and

proper [jury] charges are essential for a fair trial." State v. Baum, 

224 N.J. 147

,

158-59 (2016) (quoting State v. Reddish, 

181 N.J. 553

, 613 (2004)). "Because

proper jury instructions are essential to a fair trial, 'erroneous instructions on

material points are presumed to' possess the capacity to unfairly prejudice the




                                                                             A-0898-19
                                       20
defendant." 

Baum, 224 N.J. at 159

(quoting State v. Bunch, 

180 N.J. 534

, 541-

42 (2004)).

      It is a "well-established principle that certain conduct of a defendant

subsequent to the commission of a crime may indicate consciousness of guilt."

State v. Phillips, 

166 N.J. Super. 153

, 159 (App. Div. 1979). An example of

such conduct is unexplained flight.

Id. at 160.

Flight is distinct from departure,

which does not imply guilt. State v. Long, 

119 N.J. 439

, 465 (1990). A flight

instruction should be given when an unexplained departure "reasonably

justif[ies] an inference that it was done with a consciousness of guilt and

pursuant to an effort to avoid an accusation based on that guilt." State v. Mann,

132 N.J. 410

, 418-19 (1993) (quoting State v. Sullivan, 

43 N.J. 209

, 238-39

(1964)). The probative value of evidence related to flight

              depends upon the degree of confident with which four
              inferences can be drawn: (1) from the defendant's
              behavior to flight; (2) from flight to consciousness of
              guilt; (3) from consciousness of guilt to consciousness
              of guilt concerning the crime charged; and (4) from
              consciousness of guilt concerning the crime charge to
              actual guilt of the crime charged.

              [Id. at 420 (quoting United States v. Myers, 

550 F.2d 1036

, 1049 (1977).]

      Here, defense counsel objected to the flight charge. However, the judge

denied the request to exclude the charge, stating "I think the flight charge

                                                                            A-0898-19
                                       21
informs the jury that if they do not feel that it constituted flight judge because

he departed, they can view as such." In support of the flight charge, the judge

explained "the jury is going to have to make that determination as to whether or

not it's really flight."

       Having reviewed the record, the judge properly included the flight charge

because the jury could reasonably infer flight based on the eyewitness testimony.

Eitel testified defendant "had already started walking away" between the time

of the 9-1-1 call and the victim being moved to the park bench. Although Ryan

told defendant to leave the park, he testified defendant spoke some words in

German as he left. In addition, Barrett testified defendant left the park at a "fast

walk."

       The flight charge was also supported by evidence defendant stopped going

to the park after the incident. Further, nothing prevented defendant from arguing

he did not possess a consciousness of guilt because he acted in self-defense.

Under these facts, we discern no error in the flight charge instruction to the jury.

       We next address defendant's argument a remand for resentencing is

required because the judge erred in weighing the aggravating and mitigating

factors. We disagree.




                                                                              A-0898-19
                                        22
        Trial judges have broad sentencing discretion as long as the sentence is

based on competent credible evidence and fits within the statutory framework.

State v. Dalziel, 

182 N.J. 494

, 500 (2005). Judges must identify and consider

"any relevant aggravating and mitigating factors" that "are called to the court's

attention[,]" and "explain how they arrived at a particular sentence." State v.

Case, 

220 N.J. 49

, 64-65 (2014) (quoting State v. Blackmon, 

202 N.J. 283

, 297

(2010)).    "Appellate review of sentencing is deferential," and we will not

substitute our judgment for the judgment of the trial court.

Id. at 65.

Further,

our review of sentencing decisions is "is governed by an abuse of discretion

standard." State v. Blackmon, 

202 N.J. 283

, 297 (2010).

        Defendant was convicted of the lesser included offense of reckless

manslaughter and acquitted of murder and weapon charges. He was sentenced

to eight years in prison, subject to an eighty-five percent parole ineligibility

period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. In imposing

the sentence, the judge provided a detailed analysis and made specific findings

in support of the aggravating and mitigating factors.            The judge found

aggravating factors nine (the need to deter) and twelve (victim over sixty years

old). N.J.S.A. 2C:44-1(a)(9) and (12). The court then found mitigating factors

three    (strong   provocation),   seven    (no   prior   criminal   record),   eight


                                                                                A-0898-19
                                       23
(circumstances unlikely to reoccur), and nine (good character). N.J.S.A. 2C:44-

1(b)(3), (7) to (9). Based on the evidence, particularly defendant's use of a knife

during a fist fight, the judge concluded the aggravating factors outweighed the

mitigating factors.   The applicable factors, as weighed by the judge, were

supported by the evidence and we discern no basis to disturb the sentencing

determination.4

      Finally, defendant argues the cumulative prejudice of the errors he raises

deprived him of a fair trial and warrant reversal.      Cumulative error occurs

"where any one of several errors assigned would not in itself be sufficient to

warrant a reversal, yet if all of them taken together justify the conclusion that

defendant was not accorded a fair trial, it becomes the duty of [the reviewing]

court to reverse." State v. Orecchio, 

16 N.J. 125

, 134 (1954) (citing State v.



4
  Defendant suggests the judge could have downgraded the offense and imposed
a sentence in the third-degree range but for the judge's improper evaluation of
the aggravating and mitigating factors. However, downgrading is appropriate
only when the trial court is "clearly convinced that the mitigating factors
substantially outweigh the aggravating factors and where the interest of justice
demands . . . ." N.J.S.A. 2C:44-1(f)(2). See also State v. Megargel, 

143 N.J. 484

, 501-02 (1996) ("The decision to downgrade a defendant's sentence 'in the
interest of justice' should be limited to those circumstances in which defendant
can provide 'compelling' reasons for the downgrade."). Here, defendant failed
to demonstrate any compelling reasons to support a decision to downgrade the
offense.


                                                                             A-0898-19
                                       24
Briggs, 

84 Minn. 357

, 362 (1901)). "[T]he theory of cumulative error will . . .

not apply where no error was prejudicial, and the trial was fair."        State v.

Weaver, 

219 N.J. 131

, 155 (2014) (citing State v. D'Ippolito, 

22 N.J. 318

, 325-

26 (1956)).

      Having rejected defendant's argument any reversible error occurred during

trial, we reject his cumulative error argument. Based on our review of the

record, defendant received a fair trial and the jury's verdict is supported by the

evidence.

      Affirmed.




                                                                            A-0898-19
                                       25

Add comment

By

Recent Posts

Recent Comments