STATE OF NEW JERSEY VS. JUSTIN C. ANGELINO(13-06-1855, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

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 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

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 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

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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).

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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

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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.

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