NOT FOR PUBLICATION WITHOUT THE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-4791-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUSTIN C. ANGELINO,
Defendant-Appellant.
___________________________
Submitted September 14, 2017 – Decided October 18, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment No. 13-06-1855.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Patrick D. Isbill,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
A grand jury indicted defendant for first-degree attempted
murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); first-
degree robbery, N.J.S.A. 2C:15-1(a)(1) (count two); second-degree
conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(2) and N.J.S.A.
2C:15-1(a)(1) (count three); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1) (count four); third-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(2) (count five); third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(d) (count six); fourth-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d) (count seven); and fourth-degree unlawful
possession of an imitation firearm, N.J.S.A. 2C:39-4(e) (count
eight). The charges stemmed from defendant's involvement in the
armed robbery and brutal attack of his biological father, with
whom he had recently reconnected.
The jury found defendant guilty of robbery (count two);
conspiracy to commit robbery (count three); aggravated assault
(counts four and five); and unlawful possession of a weapon (count
eight). The jury found defendant not guilty on the remaining
counts. The trial judge merged count four with count two and
sentenced defendant on count two to a fifteen-year term of
imprisonment subject to an eighty-five percent period of parole
ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A.
2 A-4791-14T4
2C:43-7.2, concurrent to a five-year sentence on count three. The
judge sentenced defendant on count five to a four-year term of
imprisonment, consecutive to counts two and three. Lastly, the
judge sentenced defendant on count eight to a fifteen-month term
of imprisonment, concurrent to counts two, three, and five.
The judge later modified defendant's sentence under count
five to a three-year term of imprisonment, consecutive to counts
two and three; and further modified the sentence whereby count
five merged with count four. Defendant's aggregate sentence is
fifteen years subject to NERA.
On appeal, defendant raises the following contentions:
POINT I
THE TRIAL COURT'S FAILURE TO DECLARE A
MISTRIAL, OR AT A MINIMUM TO VOIR DIRE THE
JURORS TO DETERMINE IF THEY WERE REASONABLY
CERTAIN THAT FURTHER DELIBERATIONS WOULD BE
UNPRODUCTIVE, DENIED THE DEFENDANT DUE PROCESS
OF LAW AND A FAIR TRIAL. (Not Raised Below.)
POINT II
THE DEFENDANT IS ENTITLED TO A NEW SENTENCING
HEARING BECAUSE THE SENTENCE IS MANIFESTLY
EXCESSIVE AND UNDULY PUNITIVE, AND THE
SENTENCING COURT FAILED TO PROPERLY MERGE THE
CONSPIRACY WITH THE UNDERLYING ROBBERY
CONVICTION.
A. The Sentencing Court Erred in
Failing to Find Mitigating
Factor Four Based On
[Defendant's] Disadvantaged
Upbringing.
3 A-4791-14T4
B. The Conspiracy Conviction
Must Be Merged With the
Underlying Robbery.
In a pro se supplemental brief, defendant adds that the judge
erred at sentencing by failing to find a certain mitigating factor.
For the following reasons, we affirm defendant's conviction, but
remand for resentencing.
I.
Because defendant does not challenge the evidence adduced at
the trial, we need not recite the underlying facts in detail. We
limit our review to the discrete issues raised in this appeal.
The trial spanned two weeks, involved eight charges, and
eleven witnesses testified, including the State's expert witness.
Jury deliberations commenced at 3:03 p.m. on October 7, 2014. At
4:01 p.m., the jury sent a note requesting "a TV and DVD for the
review of testimony." At 4:17 p.m., the jury specified they wanted
a replay of part of defendant's recorded statement. The judge
determined the entire statement had to be replayed, and adjourned
to the next day.
Defendant's entire statement was replayed to the jury when
the trial resumed the next morning. Deliberations continued at
11:06 a.m. At 12:57 p.m., the jury sent a note asking: "What is
the definition of accomplice liability? Can accomplice liability
4 A-4791-14T4
be applied to each count in this case?" In response, the judge
re-read the accomplice liability charge to the jury, and then
adjourned to the next day.
The jury had only deliberated for approximately four hours
when, at 9:59 the next morning, it sent a note stating: "Even
after hearing the definition of accomplice liability yesterday,
the jury is at an impasse and it does not appear that there is any
possibility of coming to a unanimous decision." (Emphasis added).
In response, and without objection, the judge charged the jury in
accordance with Model Jury Charge (Criminal), "Judge's Instruction
on Further Jury Deliberations" (2013) as follows:
It is your duty, as jurors, to consult
with one another to deliberate with a view to
reaching an agreement if you can do so without
violence to individual judgment. Each of you
must decide the case for yourself, but do so
only after an impartial consideration of the
evidence with your fellow jurors.
In the course of your deliberations do
not hesitate to re-examine your own views and
change your opinion if convinced it is
erroneous, but do not surrender your honest
conviction as to the weight or effect of the
evidence solely because of the opinion of your
fellow jurors or for the mere purpose of
returning a verdict. You are not partisans.
You are judges, judges of the facts.
The judge added:
With that, each juror is directed to go
back to the jury room. You will start your
deliberations – continue with your
5 A-4791-14T4
deliberations. You have charges to be
considered. You have not deliberated that
long.
You have taken an oath and a duty to serve
as this jury. Therefore, with the
instructions that I have given you, I instruct
you to go back to the jury room and to continue
with your deliberations with the instructions
I've given you.
The jury returned to deliberate at 10:03 a.m., and reached a
verdict nearly two hours later at 11:54 a.m.
For the first time on appeal, defendant argues the judge
should have declared a mistrial or, at a minimum, read Model Jury
Charge (Criminal), "Judge's Inquiry When Jury Reports Inability
To Reach Verdict" (2013):
You have indicated that your
deliberations have reached an impasse. Do you
feel that further deliberations will be
beneficial or do you feel that you have
reached a point at which further deliberations
would be futile? Please return to the jury
room to confer, and advise me of your decision
in another note.
Defendant posits that failure to voir dire the jurors in open
court as to whether or not it was reasonably certain that further
deliberations would be unproductive served to effectively coerce
them into returning a hasty verdict. We disagree.
A trial court has discretion to order a jury to continue
deliberating after they have announced a deadlock, but cannot
coerce a jury into reaching a verdict. State v. Figueroa, 190
6 A-4791-14T4
N.J. 219, 240 (2007). When a defendant fails to object to an
error regarding a jury charge, we review for plain error. State
v. Funderburg, 225 N.J. 66, 79 (2016). "Under that standard, we
disregard any alleged error 'unless it is of such a nature as to
have been clearly capable of producing an unjust result.'" Ibid.
(quoting R. 2:10-2). "The mere possibility of an unjust result
is not enough. To warrant reversal by this Court, an error at
trial 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.'" Ibid. (quoting State v. Jenkins, 178 N.J. 347,
361, (2004)). We discern no abuse of discretion or plain error
here.
In State v. Czachor, 82 N.J. 392 (1980), our Supreme Court
disapproved of the "Allen charge"1 which was previously used with
a deadlocked jury. The Court held the Allen charge was unduly
coercive and did not "permit jurors to deliberate objectively,
freely, and with an untrammeled mind." Id. at 402. Instead, the
Court approved the recommendations of the American Bar Association
(ABA) on the issue and directed trial courts to "instruct jurors
in accordance with the ABA Standards [Section] 5.4" in the initial
general charge and repeat the instructions at the judge's
1
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed.
528 (1896).
7 A-4791-14T4
discretion when faced with a jury that has been unable to reach
unanimous verdicts. Id. at 407. Accordingly, New Jersey's Model
Criminal Charges now include the Czachor charge -- Model Jury
Charge (Criminal), "Judge's Instruction on Further Jury
Deliberations." State v. Ross, 218 N.J. 130, 144 (2014).
"The trial court's determination as to whether a Czachor
charge is warranted requires a careful analysis of the
circumstances." Ibid. "When a jury communicates a deadlock,
trial courts 'should be guided in the exercise of sound discretion
by such factors as the length and complexity of trial and the
quality and duration of the jury's deliberations.'" Ibid.
(quoting Czachor, supra, 82 N.J. at 407). "Consistent with the
principle that a jury verdict must not be the product of coercion,
appellate review of a trial court's supplemental instruction is
'guided by a concern for the weighty role that the judge plays in
the dynamics of the courtroom.'" Ibid. (quoting Figueroa, supra,
190 N.J. at 238). "The trial judge's discretion must be exercised
in a manner that ensures 'a jury verdict free from untoward
interference from any source, including the court.'" Id. at 145
(quoting State v. Shomo, 129 N.J. 248, 257 (1992)). "When the
'difference of opinion between members of the jury is clearly
intractable . . . then the jury is deadlocked and a mistrial should
be declared.'" Ibid. (quoting Figueroa, supra, 190 N.J. at 237).
8 A-4791-14T4
Here, the judge properly applied the principles articulated
in Czachor. The jury did not state it was hopelessly deadlocked
that would warrant declaring a mistrial. Instead, the jury
communicated it was at an impasse and that it did not "appear"
there was any possibility of reaching a unanimous verdict. The
jury did not indicate it was hopelessly deadlocked with "no
reasonable probability of agreement." Czachor, supra, 82 N.J. at
407.
Further, this was a two-week trial with eleven witnesses, and
the jury had only deliberated for approximately four hours at the
time it announced its impasse. Our Supreme Court determined that
reading the Czachor charge was appropriate where the jury had
deliberated for over twice that amount of time after a trial of
similar length. See Ross, supra, 218 N.J. at 138 (upholding the
reading of a Czachor charge when the jury indicated a deadlock
after deliberating approximately thirteen hours after a two-week
trial). We are satisfied that the judge properly exercised her
discretion in response to the jury's communication of an impasse
by providing a Czachor charge and directing the jury to resume
deliberations.
II.
Defendant challenges his sentence as excessive. He argues
the judge erred in failing to find mitigating factor N.J.S.A.
9 A-4791-14T4
2C:44-1(b)(4) ("substantial grounds tending to excuse or justify
the defendant's conduct, though failing to establish a defense")
based on his troubled upbringing in foster care as the result of
his father "signing away" his parental rights.
Our review of a sentence is limited. State v. Miller, 205
N.J. 109, 127 (2011). We review a judge's sentencing decision
under an abuse of discretion standard. State v. Fuentes, 217 N.J.
57, 70 (2014). As directed by the Court, we must determine
whether:
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) 'the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience.'
[Ibid. (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).]
We have considered defendant's argument in light of the record
and applicable legal principles and conclude it is without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). We are satisfied the record amply supports the
judge's findings on aggravating and mitigating factors.
Defendant also argues, and the State concedes, that the judge
should have merged the conspiracy conviction (count three) with
the robbery conviction (count two). Because the conspiracy
10 A-4791-14T4
conviction should have merged with the robbery conviction under
N.J.S.A. 2C:1-8(a)(2), we remand for resentencing.
Defendant's conviction is affirmed and the matter is remanded
for resentencing.
11 A-4791-14T4