STATE OF NEW JERSEY VS. TRAVIS T. HARTSFIELD, JR. (11-10-1865, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4452-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRAVIS T. HARTSFIELD, JR.,

Defendant-Appellant.
_____________________________

Argued April 19, 2018 – Decided April 15, 2019

Before Judges Simonelli, Haas and Gooden Brown.

On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 11-10-1865.

Joshua D. Sanders, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Joshua D. Sanders, of
counsel and on the brief).

Frank J. Ducoat, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent (Robert D. Laurino, Acting Essex County
Prosecutor, attorney; Frank J. Ducoat, of counsel and
on the brief).
 The opinion of the court was delivered by

GOODEN BROWN, J.A.D.

Following a second jury trial,1 defendant was convicted of murder,

N.J.S.A. 2C:11-3(a)(1); and second-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a). He was sentenced to an aggregate term of life

imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2. The convictions stemmed from defendant killing his twenty-month-old

daughter, A.H., by repeatedly punching her in the chest, causing a fatal liver

injury. During police questioning, defendant admitted punching his daughter

twice. His defense at trial was that he lacked the requisite state of mind for

murder because he never intended to cause serious bodily injury.

Defendant now appeals from his convictions and sentence, raising the

following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED BY PRECLUDING
DEFENSE COUNSEL FROM ENGAGING IN A
MEANINGFUL CROSS-EXAMINATION OF THE
STATE'S CENTRAL EXPERT WITNESS AS TO AN
UNCONTESTED PRIOR PROFESSIONAL ERROR
COMMITTED BY THAT EXPERT.

1
The first trial ended in a mistrial due to a hung jury.

2 A-4452-14T1
 POINT II

IT WAS ERROR FOR THE TRIAL COURT TO
DENY THE APPLICATION FOR A MISTRIAL AND
TO SUBSTITUTE A JUROR AFTER BOTH
SUBSTANTIAL DELIBERATIONS AND WHEN IT
WAS APPARENT THAT THE JURY WAS [DE
FACTO] DEADLOCKED.

POINT III

THE JURY CHARGE RELATIVE TO
[DEFENDANT'S] STATEMENT WAS
INSUFFICIENT TO ADVISE THE JURY OF THE
NEED TO CRITICALLY AND EFFECTIVELY
EVALUATE THIS STATEMENT IN LIGHT OF THE
REALITY THAT JURORS . . . HAVE GREAT
DIFFICULTY DISTINGUISHING BETWEEN
FALSE CONFESSIONS AND TRUE CONFESSIONS.
U.S. CONST. AMEND. VI; N.J. CONST. ART. I,
PAR. 10. (NOT RAISED BELOW)

POINT IV

THE TRIAL WAS SO INFECTED WITH ERROR
THAT EVEN IF EACH INDIVIDUAL ERROR DOES
NOT REQUIRE REVERSAL, THE AGGREGATE OF
THE ERRORS DENIED [DEFENDANT] A FAIR
TRIAL. (NOT RAISED BELOW)

POINT V

[DEFENDANT'S] SENTENCE IS EXCESSIVE AND
MUST BE REDUCED.

After considering the arguments presented in light of the record and applicable

law, we affirm.

3 A-4452-14T1
 I.

We glean the following facts from the trial record. A.H. was born out of

a dating relationship between defendant and D.J. D.J. and defendant did not live

together. However, because D.J. worked two jobs, and defendant was

unemployed, while D.J. was at work, defendant cared for A.H. at his mother's

home where he lived with his mother and his younger sister. A.H. had a history

of health and developmental problems. She was underweight, did not walk, had

limited talking ability, had acid reflux, and was diagnosed with a heart murmur

at two weeks old after she vomited and temporarily stopped breathing.

On the morning of March 14, 2011, D.J. brought A.H. to the shopping

center, where she worked, to hand A.H. off to defendant before her shift began.

She provided defendant with a baby bag, money, and pre-cooked food for A.H.,

who at the time was happy and energetic, and had no bruises, scrapes, or

scratches. At 7:00 p.m., when D.J.'s shift ended, she called defendant, had a

half-hour to hour-long conversation with him, and heard A.H. in the background.

When D.J. called defendant again at about 10:00 p.m., defendant informed

her that A.H. had vomited and he was cleaning it up, but his tone sounded as if

he was aggravated and D.J. did not hear A.H. in the background during the call.

Defendant's mother arrived home between 10:20 and 10:30 that night, and

observed A.H. laying on defendant's bed while defendant was sitting at the end

4 A-4452-14T1
of the bed playing a videogame. When she greeted A.H., A.H. lifted her head

and appeared "congested," prompting defendant's mother to inquire whether

A.H. had a cold. Defendant replied that she did. After helping defendant's sister

with her homework, defendant's mother went to sleep.

Later, at 12:39 a.m. on March 15, 2011, D.J. was awakened by a telephone

call from defendant, and noticed she had seven to eight missed calls from

defendant on her phone. Defendant informed D.J. that A.H. was not breathing,

and when he woke up to change her diaper, she was "ice cold." D.J. told

defendant to call 9-1-1 and promptly headed for his house. When 9-1-1 call-

taker Lauri Biverfeld received the call from defendant at 12:41 a.m., she noted

that he was not hysterical or upset during the call as people normally were in

that situation and did not mention that his child was not breathing until one

minute and twenty-eight seconds into the call. Biverfeld dispatched emergency

medical assistance to the Hartsfield residence, instructed defendant to perform

cardiac pulmonary resuscitation (CPR) on A.H., and guided him through the

process.

Emergency Medical Services (EMS) technicians Paul Visoskas and John

Berghoefer were the first to respond to the Hartsfield residence. Visoskas

observed A.H. lying on her back on the kitchen floor, with defendant standing

over her "very calmly." A.H. "had turned ashen" and was not breathing. Her

5 A-4452-14T1
pupils were fixed and dilated. Defendant told Visoskas that A.H. had been in

that condition "for at least [forty] minutes." Berghoefer checked for breathing

and a pulse, but did not detect either. He picked up A.H., performed CPR,

carried her outside, and delivered her to paramedics Juan Carlos Jurjo and Dan

Rice, who arrived at the residence at 12:48 a.m. Jurjo and Rice placed A.H. on

a stretcher, performed CPR, and attached electronic monitoring devices to her.

Jurjo also observed that A.H. was "cold to the touch" and "asystole," meaning

she had no heartbeat. In addition, there was bruising on her chest that

"resembled multiple small round spots[,]" as well as trauma in the mouth area.

Jurjo inserted an interosseous line into A.H.'s shin bone to administer

medications and fluids, and Rice intubated her. However, despite continuing

CPR during the ride to the hospital, A.H. did not respond. The paramedics

arrived at the hospital at 12:58 a.m. and handed A.H. over to the emergency

room staff. At the time, A.H. was still aystolic, not breathing, had no pulse, and

had a temperature of eighty-five degrees.

Dr. Maria Alvarez-Ballway, the attending physician in the Pediatric

Emergency Department at University Hospital, began treating A.H. at 1:00 a.m.

Although she did not do a full-body assessment of A.H.'s bruising, she observed

eleven chest bruises on A.H., as well as bruises or scratches on her back, arms,

forehead, ear, and face. Her staff continued CPR and attempted to warm the

6 A-4452-14T1
body with the hope that medication would become effective at higher

temperatures. However, after an hour of treatment, A.H. lacked any vital signs

and was pronounced dead at 2:00 a.m.

D.J. arrived at the Hartsfield residence after the first responders had left,

and observed defendant speaking in a "laid back" fashion with police officers.

Upon learning that A.H. had been taken to the hospital, which was a little over

a half-mile from defendant's house, D.J. ran to the hospital. Newark Police

Department Detective Levi Holmes was one of the officers speaking to

defendant at his house. Holmes arranged for defendant to be transported to the

police station and recorded a formal statement from him at 3:45 a.m. At the

time, defendant was not a suspect and was not informed that his daughter was

dead. Holmes noted that during the statement, defendant was "very cooperative"

and "calm," but never inquired about his daughter's condition. Defendant

admitted that A.H. was with him since he picked her up from D.J., and said that

he noticed A.H. was not breathing at about 12:20 a.m. to 12:30 a.m. when he

went to change her diaper. He also stated that A.H. had no marks or bruises on

her other than a chest bruise from sleeping on a necklace.

Two Division of Child Protection and Permanency (DCPP) caseworkers

responded to the police station on the morning of March 15 and interviewed

defendant following his interview with Holmes. They described defendant's

7 A-4452-14T1
demeanor as "very flat." During the interview, defendant again attributed A.H.'s

chest bruises to a necklace, and became frustrated when the caseworkers

questioned him regarding A.H.'s temperature. Defendant also spoke with D.J.

on the telephone at some point later that day and swore "on his great[-

]grandmother[]" that he did not do anything to cause harm to A.H.

Eddy Lilavois, Assistant Medical Examiner for the Northern Regional

Medical Examiner's Office, began A.H.'s autopsy at 10:10 a.m. on March 15.

He observed "multiple injuries" on "the head," "the torso," and "the extremities"

of her body. Notably, he observed "a series of bruises that covered the lower

part of the chest extending over the upper abdomen." He found that the "pattern

of injuries was clearly demarcated and . . . was the imprint of knuckle injuries

imparted on the chest of the decedent." He also observed bruises and injuries

on A.H.'s internal organs, including the thymus, right lung, and liver, and when

he cut into the abdominal wall, "blood came gushing out of the abdomen ."

Lilavois concluded that the cause of death was "multiple blunt impact

injuries of the torso," which resulted in a fatal liver tear that caused A.H. to

internally bleed to death. He determined that the manner of death was homicide.

He opined that "[a] very strong blow, or . . . series of strong blows," was

necessary to cause the injuries he observed to the chest and underlying organs ,

and explained that the blows "were strong enough to crush the spongy lung and

8 A-4452-14T1
break the vessels inside." According to Lilavois, the injuries to the chest

presented a "very specific pattern[,]" which he attributed "to direct blows to the

chest by a closed fist with the knuckles presenting up front."

Upon receipt of the medical examiner's report, defendant became the main

target of a homicide investigation based on his earlier acknowledgement that

A.H. had been with him since he picked her up from D.J. the prior morning.

Detective Paul Sarabando of the Essex County Prosecutor's Office took a formal

recorded statement from defendant, which began at 6:40 p.m. on March 15.

Initially, Sarabando and his partner read Miranda2 warnings to defendant, and

defendant waived his rights and agreed to give a statement.

During the questioning, the detectives asked defendant a series of

questions about the events leading up to the death of his daughter. Defendant

confirmed that he was home alone with A.H. between 1:30 p.m. and 10:30 p.m.

According to defendant, A.H. had napped from 1:30 p.m. to 4:30 p.m. and had

a chocolate drink and juice before going back to sleep. After she awoke at about

7:00 p.m., he attempted to feed her, but she did not want to eat. So, instead, he

gave her another drink and she slept until his mother returned home at about

10:30 p.m. After his mother arrived home, he laid A.H. down to sleep again and

2
Miranda v. Arizona, 384 U.S. 436 (1966).

9 A-4452-14T1
claimed that he did not notice that she was not breathing until around 12:30 a.m.

when he went to change her diaper.

After listening to defendant, Sarabando stated, "[t]here's something

missing in between all that. You want to tell us what's missing?" Defendant

responded, "[a]bout the part when she didn't want to eat[?]" Defendant then

explained that A.H. refusing food "[k]ind of made [him] a little upset[,]" and

"[he] kind of lost it." He further explained:

So I was basically trying to force her to eat. Like, she
would put -- she would eat pudding in her mouth, but
she wouldn't chew it, like, chew your food. So I kind
of got upset and -- and punched her twice in the chest.
That was it. And nothing else.

Defendant demonstrated the position of his punches, "[l]ike where her

breasts [were]," and explained that he used both hands and closed fists.

According to defendant, "as soon as" he punched her, she vomited, cried, and

started to breathe differently. He described her breathing as "a bad cough , . . .

[that] wouldn't come out." After delivering the punches, he told A.H. to "go lay

down," and she crawled away. He estimated that the incident occurred about

thirty minutes before his mother arrived home, at around 10:00 p.m. When

asked why he did not call an ambulance, defendant stated, "I didn't think

[any]thing of it then because I thought it was just okay, like, I punched her twice,

she -- she's all right. She's just breathing." Unsolicited, defendant later stated,

10 A-4452-14T1
"I believe I have anger issues . . . . [m]ajor." Defendant was then placed under

arrest.

At the trial, the State presented thirteen fact witnesses. D.J. and

defendant's mother testified about the family background and their involvement

in the events of the day in question. DCPP caseworkers testified about their

investigation of the case. Visoskas, Berghoefer, and Jurjo testified about the

emergency medical response and delivery of A.H. to the hospital, and Alvarez-

Ballway testified about the emergency room treatment provided to A.H. at the

hospital. Biverfeld testified about the 9-1-1 call, which was played for the jury,

and Sarabando and Holmes detailed the investigation and defendant's

statements. Defendant's videotaped confession was played for the jury during

Sarabando's testimony. Additionally, Crime Scene Unit members testified about

evidence collection at the Hartsfield residence.

Lilavois was the State's sole expert witness at trial. He testified about the

autopsy results and described the fatal liver injury in detail, noting it would not

have been survivable even if it had occurred on the steps of the hospital. He

opined that, based on the discoloration of the bruises, the injuries he observed—

including the bruised lips and the chest and back bruises—all occurred

contemporaneously and prior to A.H.'s death. According to Lilavois, the

coloration of the bruises indicated that they were "sustained within a few hours,"

11 A-4452-14T1
but certainly "[l]ess than a day" before her death. He also opined that A.H. was

"practically dead" by the time the emergency medical service personnel arrived

at the Hartsfield residence, and that her cold temperature indicated that she had

been in a "lifeless condition, or close to lifeless condition, for some[ time]." He

testified that none of the injuries he observed were caused by CPR or intubation

because when the first responders arrived, based on A.H.'s reported condition,

there would not have been enough blood in "circulation" for any "bruising" to

have occurred.

Defendant did not testify but produced one expert witness, Dr. Zhonghue

Hua, a physician, forensic pathologist, and neuropathologist. After reviewing

the autopsy report prepared by Lilavois, Hua agreed with Lilavois that the sole

cause of death was defendant punching A.H., resulting in the fatal liver injury.

However, Hua expressed several minor disagreements with Lilavois' findings

and conclusions, and two major disagreements related to the effect of the CPR

or intubation and the time of death. Contrary to Lilavois, Hua opined that CPR

or intubation could have caused some of the injuries observed on A.H.'s body,

and that A.H.'s time of death was mere minutes before her pronouncement at the

hospital at 2:00 a.m. Hua premised the latter conclusion on the presumption that

the emergency medical personnel would not have attempted to resuscitate A.H.

for so long if she had been truly dead.

12 A-4452-14T1
 Following the jury verdict, on December 22, 2014, the trial court

sentenced defendant to life imprisonment subject to NERA on the murder

charge,3 and a concurrent ten-year term with a five-year period of parole

ineligibility on the child endangerment charge. A memorializing judgment of

conviction was entered and this appeal followed.

II.

In Point I, defendant argues that the court erred by preventing him from

cross-examining Lilavois about his involvement "in a shaken-baby case" that

occurred in 1993, and his subsequent resignation from a job in 1995, in order to

challenge his "professional competency" and "credibility." According to

defendant, "[t]he refusal to allow meaningful cross-examination of [Lilavois]

when his opinion was the issue before the jury was egregiously unfair" and

deprived him of his "right to a fair trial." We disagree.

In a civil suit stemming from the 1993 incident, a New York court

summarized Lilavois' involvement as follows:

Three-year-old Andrew Lauer died on August 7,
1993. That same day, Dr. Eddy Lilavois, a New York
City Medical Examiner, performed an autopsy and
3
A defendant convicted of a crime subject to NERA must serve eighty-five
percent of his sentence before he is eligible for parole. N.J.S.A. 2C:43 -7.2(a).
"Solely for the purpose of calculating the minimum term of parole ineligibility
. . . , a sentence of life imprisonment shall be deemed to be [seventy-five] years."
N.J.S.A. 2C:43-7.2(b).

13 A-4452-14T1
 prepared a report stating that the child's death was a
homicide caused by "blunt injuries" to the neck and
brain. Although the report indicated that the brain was
being preserved for further examination, the following
day a death certificate was issued stating that Andrew's
death was a homicide. Based on the Medical
Examiner's conclusion, the police began investigating
what they thought was a homicide, focusing primarily
on plaintiff, Andrew's father. Weeks later, on August
31, 1993, the Medical Examiner and a neuropathologist
conducted a more detailed study of Andrew's brain.
The report, prepared in October 1993, indicated that a
ruptured brain aneurysm caused the child's death, thus
contradicting the earlier conclusion. The Medical
Examiner, however, failed to correct the autopsy report
or death certificate, and failed to notify law
enforcement authorities.

Meanwhile, the Police Department's
investigation into Andrew's death continued. Some
[seventeen] months later, in March 1995, after a
newspaper exposé, the autopsy findings were revised,
the police investigation ceased and an amended death
certificate was prepared. As a result of this incident,
the City Medical Examiner who had conducted the
examination resigned.

[Lauer v. City of N.Y., 733 N.E.2d 184, 186 (N.Y.
2000).]

During the first trial, the judge granted the State's in limine motion,

precluding cross-examination about the incident, stating:

It appears to me that the actual details of the
misdiagnosis or initial misdiagnosis because I don't
know that we really had a mistake here, but . . .
accepting . . . the factual allegations that the [S]tate has
made with regard to what happened back [twenty] years

14 A-4452-14T1
ago, in essence, that a diagnosis was made of a
particular cause of death which led the doctor to call it
a homicide and then when they got back certain lab
results, he realized . . . it was a different cause of death,
which now led him to believe it was not a homicide.
And it had to do with an aneurysm . . . . And that,
obviously, has nothing to do with the cause of death in
this particular case.

So, factually, medically, there is no relevance
between the issues in determining the cause of death
from a [twenty]-year-old case to the cause of death in
this case. Even if there was, it's [twenty] years ago, and
. . . there would have to be, as counsel said, a trial within
a trial, to educe all the circumstances regarding that
particular diagnosis, how it was made -- the state of the
art of the medical profession at that time may have been
different than it is today when this diagnosis was made
-- and why the doctor made the diagnosis he made, and
what the conditions were, and whether it was
appropriate for him to do so.

But we all know, and counsel admits for the
defense, that's not really the issue. The issue is his
failure to disclose that to the investigative authorities
when he changed the manner of death from homicide to
. . . natural causes . . . .

. . . [A]nd I find that Rule [404(b)] applies and
this is . . . a prior bad act. And . . . [404(b)] tells us that,
except as otherwise provided under Rule [608(b),]
which doesn't apply, evidence of other crimes,
wrongs[,] or acts is not admissible to prove the
disposition of a person in order to show that such
person acted in conformity therewith. And there has
been no indication by counsel to me that the . . .
evidence would be introduced for any other reason such
as opportunity, intent, motive, preparation, [etc.]

15 A-4452-14T1
 So, the fact that it's [twenty] years old, the fact
that it would cause undue extra time to be taken in trial
dealing with the actual facts of this [twenty]-year-old
case, the facts of which are irrelevant, . . . leads me to
preclude that evidence.

During the second trial before a different judge, defendant expressed his

continuing objection to the ruling, to which the trial judge responded that he was

"not changing [the prior judge's] ruling on that subject[,]" a ruling with which

he "[did] not disagree." 4

We recognize the well-established principle in our system of criminal

jurisprudence that "an accused is entitled to advance in his defense any evidence

which may rationally tend to refute his guilt or buttress his innocence of the

charge made." State v. Garfole, 76 N.J. 445, 453 (1978), aff'd following remand,

80 N.J. 350 (1979). Equally established is the principle that "[t]he admission or

exclusion of evidence at trial rests in the sound discretion of the trial court ."

State v. Willis, 225 N.J. 85, 96 (2016) (citing State v. Gillispie, 208 N.J. 59, 84

4
We reject as specious defendant's procedural challenge to the judge relying on
the prior judge's ruling. While "[t]he declaration of [a] mistrial rendered
nugatory all of the proceedings during the first trial[,]" and each party "was
entitled to offer evidence and to make motions and objections without limitation
to that which had been offered or made at the first trial, . . . without being bound
by the prior rulings of the court with respect thereto[,]" State v. Hale, 127 N.J.
Super. 407, 413 (App. Div. 1974), a judge is not precluded from adopting a prior
evidentiary ruling by a different judge or required to conduct a hearing in the
absence of a motion for reconsideration.

16 A-4452-14T1
(2011)). We will sustain the trial court's evidentiary ruling "unless it can be

shown that the trial court palpably abused its discretion, that is, that its finding

was so wide [of] the mark that a manifest denial of justice resulted[,]" State v.

Lykes, 192 N.J. 519, 534 (2007) (first alteration in original) (quoting Verdicchio

v. Ricca, 179 N.J. 1, 34 (2004)), or "on a showing that there has been a 'clear

error in judgment.'" State v. Harris, 156 N.J. 122, 178 (1998) (quoting State v.

Koedatich, 112 N.J. 225, 313 (1988)).

Likewise, "the scope of cross-examination is a matter for the control of

the trial court and an appellate court will not interfere with such control unless

clear error and prejudice are shown." State v. Murray, 240 N.J. Super. 378, 394

(App. Div. 1990). Generally, cross-examination "should be limited to the

subject matter of the direct examination and matters affecting the credibility of

the witness." N.J.R.E. 611(b). However, experts may also be questioned

regarding "testimonial and experiential weakness[es.]" Janus v. Hackensack

Hosp., 131 N.J. Super. 535, 541 (App. Div. 1974) (quoting Angel v. Rand

Express Lines, Inc., 66 N.J. Super. 77, 86 (App. Div. 1961)). Additionally, "an

expert witness is always subject to searching cross-examination as to the basis

of his opinion[,]" State v. Martini, 131 N.J. 176, 264 (1993) (quoting Glenpointe

Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div. 1990)), rev'd in

part on other grounds, State v. Fortin, 178 N.J. 540, 646 (2004), and any change

17 A-4452-14T1
of opinion, Murray, 240 N.J. Super. at 395, as well as issues that demonstrate

bias or partiality. State v. Wakefield, 190 N.J. 397, 451-52 (2007).

Here, defendant sought to cross-examine the State's expert with evidence

of other wrongs or acts. "[E]vidence of other crimes, wrongs, or acts is not

admissible to prove the disposition of a person in order to show that such person

acted in conformity therewith." N.J.R.E. 404(b). However, "[s]uch evidence

may be admitted for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity[,] or absence of mistake or accident when

such matters are relevant to a material issue in dispute." Ibid. Here, defendant

sought to introduce the evidence to impeach the expert's credibility and

undermine his professional competency.

In order to be admissible under Rule 404(b),

1. The evidence of the other [crimes, wrongs, or acts]
must be admissible as relevant to a material issue;

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

3. The evidence of the other [crimes, wrongs, or acts]
must be clear and convincing; and

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

[State v. Cofield, 127 N.J. 328, 338 (1992) (quoting
Abraham P. Ordover, Balancing The Presumptions Of
Guilt And Innocence: Rules 404(b), 608(b), And

18 A-4452-14T1
 609(a), 38 Emory L.J. 135, 160 (1989)) (footnote
omitted).]

"Generally, courts apply that rule to evidence of 'other crimes, wrongs, or

acts' of the defendant in a criminal case." State v. Gookins, 135 N.J. 42, 46

(1994). However, "[w]hen the defendant is offering the evidence, a less

stringent test of relevancy applies and prejudice to the defendant is not a factor."

State v. Franklin, 384 N.J. Super. 306, 310 (App. Div. 2006) (citing Garfole, 76

N.J. at 452). Indeed, "simple relevance to guilt or innocence should suffice as

the standard of admissibility[.]" Garfole, 76 N.J. at 452-53. However, when the

defendant seeks to use Rule 404(b) evidence not as substantive proof of guilt of

a third party but to attack the credibility of a witness, "[p]rejudice to the State,

as well as confusion of the issues and misleading the jury, must be evaluated in

balancing all of the factors." Franklin, 384 N.J. Super. at 312. "'[W]hat is called

for . . . is a highly discretionary determination as to the admissibility of the

defendant's proffered evidence' which weighs and takes into account the

competing considerations listed in [Rule] 403." State v. Fulston, 325 N.J. Super.

184, 190-91 (App. Div. 1999) (first alteration in original) (quoting Garfole, 76

N.J. at 457).

Applying these principles, we discern no abuse of discretion in the judge's

ruling. When Lilavois testified at defendant's trial in 2014, he had been in his

19 A-4452-14T1
position for eighteen years and had performed close to 500 autopsies just in the

three years prior to the trial. Defendant sought to introduce evidence of a 1993

misdiagnosis in an unrelated case and resulting resignation in an attempt to

discredit Lilavois' current professional competency and impeach his credibility.

However, specific instances of past conduct cannot be used on cross-

examination to attack a witness' credibility. See, e.g., State v. Hernandez, 225

N.J. 451, 466 (2016) (explaining that inconsistent statements made by a

confidential informant in another trial were not admissible under N.J.R.E. 608

to impeach the informant's credibility in current trial); State v. Parker, 216 N.J.

408, 422-25 (2014) (prosecutor's use of evidence that defendant previously used

false names to impeach his credibility warranted a new trial); State v. Spivey,

179 N.J. 229, 242 (2004) (upholding exclusion of evidence of police officer's

"single alleged act of prior misconduct" by assaulting and framing a different

defendant "in an unrelated case tried several years earlier" when proffered by

defendant to show bad character of same officer in defendant's trial on drug

related and assault charges).

Indeed, the credibility of a witness may only be attacked using past

conduct evidence if "the witness made a prior false accusation against any

person of a crime similar to the crime with which defendant is charged," Rule

608(b), or if the past conduct evidence falls under an exception set forth in any

20 A-4452-14T1
other Rule of Evidence, none of which apply here. See, e.g., N.J.R.E. 609

(providing prior criminal conviction may be used to impeach credibility of

witness); N.J.R.E. 608(a) ("Except as otherwise provided by Rule 609 . . . , a

trait of character cannot be proved by specific instances of conduct"); N.J.R.E.

405(a) (providing "[s]pecific instances of conduct not the subject of a conviction

of a crime shall be inadmissible").

As to challenging Lilavois' professional competency, the remote 1993

incident fails to satisfy prong four of the Cofield test inasmuch as its marginal

probative value is vastly outweighed by its prejudice to the State. Thus, we

agree with the judge that the evidence was inadmissible under Rule 404(b), and

we are satisfied that none of the cases cited by defendant mandate a different

outcome. Cf. State v. Parsons, 341 N.J. Super. 448, 458-59 (App. Div. 2001)

(holding that the pendency of official misconduct charges relating to an arresting

officer's involvement with drug dealers was admissible under Rule 404(b) to

attack the officer's credibility in the defendant's prosecution for drug and

weapons possession charges); Gookins, 135 N.J. at 44-48 (vacating the drunk

driving convictions of three defendants so that they could offer evidence under

Rule 404(b) of the arresting officer's guilty plea to fabricating breathalyzer

readings in another drunk-driving case and being implicated in similar

21 A-4452-14T1
misconduct in others where the principal evidence against the defendants

consisted of the breathalyzer readings performed by the officer).

Moreover, as the judge recognized, the introduction of the evidence would

have led to "a trial within a trial," and any probative value it possessed was

substantially outweighed by the undue risk of prejudice to the State,

consumption of time, confusion of the issues, and misleading the jury. N.J.R.E.

403. Cf. Harris, 156 N.J. at 178 (holding trial court did not abuse discretion in

excluding past conduct evidence under Rule 403 because evidence had minimal

probative value, incidents occurred years earlier, and evidence "would only

divert attention from the true issues" in case).

III.

In Point II, defendant argues that the judge erred by substituting an

alternate juror rather than declaring a mistrial after "the jury had passed the point

of no return" during their deliberations. According to defendant, the "late

substitution was error either due to the [de facto] deadlock or due to the extent

of the prior deliberations." We disagree.

After ten days of trial, jury deliberations commenced at 1:42 p.m. on

October 22, 2014, and, over the course of two days, October 22 and 23, the jury

spent approximately nine-and-one-half hours deliberating. At the jury's request,

deliberations were interrupted during that two-day period for a play back of the

22 A-4452-14T1
tape of defendant's confession and the 9-1-1 call, as well as additional

instructions on "knowingly" and the state of mind requirements for murder.5 On

the morning of October 24, 2014, after advising a Sheriff's officer that he wanted

to speak with the judge, juror seven notified the court that "[y]esterday, in the

jury room, juror number [fifteen] had stated she had [a] previous . . .

investigation with DYFS and we, as a whole, feel that that's impeding . . . her

judgment . . . to make a decision." The juror explained that other members of

the jury also heard the comments and when asked by counsel why he believed

the juror's prior experience was impeding her judgment, juror seven responded

that juror fifteen was "showing too much emotion and not basing her decision

on facts and evidence."

The judge then questioned juror fifteen, who admitted to previous

involvement with "DYFS" when she was the subject of a child abuse

investigation "about [twenty] years ago," and admitted that she pled guilty to

theft in 2008, although she had failed to disclose either fact during jury selection.

Contrary to juror seven's representations, she also denied having discussed her

"DYFS" involvement with any other juror and claimed she had no bias. The

prosecutor moved to excuse juror fifteen for failing to disclose the information

5
The alternate was present in the courtroom when the judge responded to the jury's
requests.

23 A-4452-14T1
during jury selection, arguing she would have exercised a peremptory challenge

to remove the juror at the outset had the juror been truthful. However, before

the judge could issue his ruling, juror eight asked to speak with the judge, and

inquired "if the jury comes back deadlocked, [does] the person get retried again,"

and "if so, how many times?" After consulting with counsel, the judge

responded to juror eight that "[i]t [was] the jury's duty to decide this case on the

evidence produced in this courtroom and not on the consequences of their

decision," and directed juror eight not to discuss their conversation "with [her]

fellow jurors."

Thereafter, defense counsel requested a mistrial. Although she agreed

with the prosecutor that juror fifteen had to be excused, she argued that the case

could not proceed with an alternate juror because the circumstances of juror

fifteen's removal went beyond "a personal issue[.]" Instead, the circumstances

"indicate[d] that juror bias was injected into the jury room[,]" and "that this jury

has gone too far for a substitute juror to be put in at this time." The prosecutor

opposed a mistrial, arguing that the reason for removal was "juror misconduct"

based on juror fifteen intentionally withholding information and making

deliberate misrepresentations to the court. She urged the judge to conduct a voir

dire of the remaining jurors to determine if juror fifteen's comments affected

24 A-4452-14T1
their ability to be fair and impartial, and, if not, to allow deliberations to

continue with an alternate juror.

Later that day, the judge removed juror fifteen because she "concealed"

her prior conviction and "DYFS" investigation during jury selection. The judge

determined that her "willful dishonesty" and "emotional instability" made her

"[un]fit to serve" and incapable of "discharging the obligations of a juror."

Moreover, the parties agreed that juror fifteen "had to be discharged." However,

the judge found that "[her] inability to continue as a juror [was] personal to her"

because her "misconduct" did not relate "to her interaction with her fellow jurors

or with the case[] itself." The judge excused the remaining jurors for the day,

without any deliberations occurring that day, informed them of juror fifteen's

removal, and instructed them "not to speculate [as to] the reason" for her

removal or have her removal "enter into [their] discussions or deliberations in

any manner, for any purpose, at any point."

When the remaining jurors returned four days later, on October 28, 2014,

without "intrud[ing] into the specifics of jury deliberations[,]" the judge

conducted separate interviews with each deliberating juror in order "to

determine 'whether a reconstituted jury will be in a position to meaningfully . . .

evaluate and discuss the case.'" See State v. Ross, 218 N.J. 130, 149 (2014).

After cautioning each juror not to say anything about their or any other juror's

25 A-4452-14T1
position on the case, how they or any other juror intended to vote, the vote tally,

or any discussions in the jury room, the judge inquired of each juror whether he

or she heard juror fifteen make reference during deliberations to her personal

experience with "DYFS." If so, the judge inquired whether the juror could set

aside those comments and decide the case based on the evidence produced and

nothing else. All but one juror heard juror fifteen's comments, which included

references to her being treated unfairly. However, all the jurors who heard the

comments told the judge they were able to set the comments aside and decide

the case solely on the evidence produced in the courtroom.

Based on the jurors' responses to the individual questioning, the judge

concluded "no deliberating juror ha[d] been tainted" and deliberations had not

progressed to the point where deliberations could not commence anew. Thus,

the judge denied defendant's motion for a mistrial, explaining:

Here, there's no indication that the original jury
has proceeded too far in their deliberations to begin
anew with the remaining alternate juror substituted in
for juror [fifteen]. The jury thus far has deliberated
only for approximately [nine-and-one-half] hours . . . .
And during that time, they have sent out four notes
asking to see and hear . . . evidence and asking for
clarification on legal principles.

The jury sent out its final note of this nature
approximately two hours before it finished deliberating
for the day on Thursday, October 23[], which was its
last day of deliberating. The number and substance of

26 A-4452-14T1
 jury notes in the comparatively short time the jury has
spent deliberating, in relation to the great length of the
trial[] itself, indicates that the jury has not yet reached
a decision on the issues of fact and law present in this
case. . . .

Additionally, juror [eight's] hypothetical
question about the consequences of a deadlock is of no
moment. Juror [eight] asked this question on Friday,
October 24[], while the jury was not deliberating
because the [c]ourt was working to address juror
[fifteen's] misconduct. This question was raised by a
single juror, not the jury as a whole, and it was raised
in a hypothetical manner that did not suggest to the
[c]ourt that the jury had determined that it could not
come to a decision on any issues of fact or law.

Accordingly, the jury's deliberations have not
progressed to the point that a reconstituted jury would
be unable to evaluate and discuss the case in a
meaningful way and a mistrial is not warranted . . . .

The court seated the only alternate, juror number two, and instructed the

newly constituted jury as follows:

As you know, juror number [fifteen] has been . . .
excused from the jury. An alternate juror, number
[two], will take her place. . . .

Because of this change in your jury, you must set
aside and disregard all of your past deliberations and
begin your deliberations again, just as if you were now
entering the jury room for the first time directly after
listening to my charge.

In that connection, the notes that you wrote, or
whatever you put into that envelope[,] . . . . is [going

27 A-4452-14T1
 to] be destroyed. You'll have new paper to make new
notes.

Now, in beginning your deliberations again, you
must eliminate any impact that juror [fifteen] may have
had on your deliberations and consider the evidence in
the context of full and complete deliberations with a
new member of your jury, juror number [two].

The reconstituted jury deliberated for approximately one hour and forty-three

minutes in total, before rendering a verdict of guilty.

"Our review of a trial court's decision to remove and substitute a

deliberating juror because of an 'inability to continue,' pursuant to Rule 1:8-

2(d)(1)," and its denial of a motion for a mistrial based upon the removal and

substitution, is deferential, warranting reversal only if "the court has abused its

discretion." State v. Musa, 222 N.J. 554, 564-65 (2015). "[T]he 'inability to

continue' standard is necessarily vague because it is impossible to catalogue the

myriad circumstances personal to a deliberating juror that may warrant her

removal and substitution." State v. Jenkins, 182 N.J. 112, 124 (2004). Thus,

deference to the "trial court fact-findings in this setting must guide our analysis."

Musa, 222 N.J. at 565.

The juror substitution procedure delineated in Rule 1:8-2(d)(1) does not

"offend our constitutional guaranty of trial by jury[,]" State v. Miller, 76 N.J.

392, 406 (1978), rev'd on other grounds, Miller v. Fenton, 474 U.S. 104 (1985),

28 A-4452-14T1
and substituting a juror in the course of deliberations "does not in and of itself

offend a defendant's constitutional guarantee of a trial by jury." State v.

Williams, 171 N.J. 151, 162 (2002). "Such a substitution, however, contravenes

constitutional norms if it impairs the mutuality of deliberations—the 'joint or

collective exchange of views among individual jurors.'" Ross, 218 N.J. at 146-

47 (quoting Williams, 171 N.J. at 163).

Because "[t]he trial court is charged with maintaining 'an environment that

fosters and preserves that exchange until the jury reaches a final

determination[,]'" id. at 147 (quoting Williams, 171 N.J. at 163), "the trial court

must appraise the impact of a juror substitution on the jury process, without

tainting that process with intrusive questions. It must conduct any inquiry with

respect to the juror in question, or the jury as a whole, with caution and

restraint." Ibid. In that regard, the trial court must assess two related issues:

First, the trial court must determine the cause of the
juror's concern and assess the impact of the juror's
departure on the deliberative process. Second, in light
of the timing of the juror's dismissal and other relevant
considerations, the trial court must ascertain whether a
reconstituted jury will be in a position to conduct open-
minded and fair deliberations.

[Ibid.]

"Consistent with the language of Rule 1:8-2(d)(1), and in the absence of

indicia that a reconstituted jury cannot engage in meaningful deliberations, our

29 A-4452-14T1
courts have consistently upheld the substitution of an alternate for a juror

excused for personal reasons unrelated to the case." Ibid. Personal reasons

prompting a juror's departure in the midst of deliberations "do not originate in

the interactions between the excused juror and the remaining jurors.

Accordingly, they do not preclude the substitution of an alternate for the excused

juror." Id. at 148.

After determining "whether issues personal to the juror or troubled

relationships in the jury room" prompted the juror's departure,

the trial court should consider whether a reconstituted
jury will be in a position to meaningfully evaluate and
discuss the case. "No bright line rule in respect of the
length of jury deliberations triggers a finding that
deliberations have progressed too far to permit the
substitution of an alternate." [Williams, 171 N.J. at
169.] Instead, the court should consider such factors as
the timing of the juror's departure, his or her
explanation of the problem prompting the inquiry, and
any communications from the jury that may indicate
whether deliberations have progressed to the point at
which a reconstituted and properly charged jury will be
unable to conduct open and mutual deliberations.

[Id. at 149.]

In Ross, our Supreme Court offered guidance to trial courts in determining

whether a reconstituted jury will meaningfully deliberate. It explained:

First, the trial judge should conduct any inquiry of the
juror seeking to be excused with caution, and should
direct the juror not to reveal confidential jury

30 A-4452-14T1
 communications. Second, the trial court may consider
the duration of the jury's deliberations prior to the
departure of the juror. Without applying an inflexible
rule that would preclude substitution after a specific
amount of time has elapsed, the trial court should
determine whether the jury appears to have progressed
to a stage at which issues have been decided and
deliberations cannot commence anew. Third, if a
partial verdict has been rendered, or the circumstances
otherwise suggest that jurors have decided one or more
issues in the case, the trial court should not authorize a
juror substitution, but should declare a mistrial.

Finally, if the trial court permits the substitution
of an alternate juror for an excused juror, it must
instruct the newly composed jury before its
deliberations. The trial court should charge the jury
that the excused juror's departure was prompted by
personal issues, rather than by his or her view of the
case or relationships with other jurors, that the
reconstituted jury should not speculate on the reasons
for the juror's departure, and that the jury should begin
deliberations anew by setting aside their previous
discussions so that the reconstituted jury may conduct
full and complete deliberations.

[Id. at 151 (citations omitted).]

Applying these principles to this case, we are satisfied that the judge's

decision to remove juror fifteen for misconduct and substitute the alternate did

not constitute an abuse of discretion. Defendant does not dispute that juror

fifteen was properly removed for personal reasons based on her

misrepresentations during jury selection about her prior criminal conviction and

"DYFS" involvement and her resulting emotional state as reported by juror

31 A-4452-14T1
seven. See Jenkins, 182 N.J. at 130 (holding the trial court could have properly

excused the juror due to her bias where the juror refused "to abide by her sworn

oath to follow the law due to her emotional identification with defendant");

Miller, 76 N.J. at 406-07 (holding the trial court properly substituted an alternate

for juror who "stated that in his then nervous and emotional condition, he did

not think he could render a fair verdict"); State v. Trent, 157 N.J. Super. 231,

235-36, 240 (App. Div. 1978) (authorizing replacement of juror who cited her

"nervous" and "emotional" condition because defendant reminded her of her

son), rev'd on other grounds, 79 N.J. 251 (1979).

After thoroughly examining every remaining juror individually, the judge

determined that the jury had not been tainted or prejudiced by juror fifteen's

comments and could remain fair and impartial. The judge also concluded that

no communications with the original jury suggested that any juror had reached

a determination on a factual or legal issue, or that the jury was unable to engage

in open-minded discussions after the substitution that would deprive the new

juror of a realistic opportunity to share in the deliberative process . In that

regard, the judge dismissed juror eight's question about the consequence of a

deadlock because the question was posed by a single juror as a hypothetical on

a day when the jury was not deliberating. The judge replaced juror fifteen with

the alternate and provided instructions to the newly constituted jury in

32 A-4452-14T1
accordance with the Model Criminal Jury Charge. We presume that the judge's

instructions were followed. See State v. Winder, 200 N.J. 231, 256 (2009).

Thereafter, the newly constituted jury rendered a verdict after deliberating for a

period sufficient to permit an open and thorough discussion of the issues.

Here, there was no "partial verdict" as in State v. Corsaro, 107 N.J. 339,

340-42, 354 (1987), where the Court determined it was plain error "to substitute

a juror after a partial verdict ha[d] been returned and to allow the reconstituted

jury to reach a final verdict on [the] remaining charges." Additionally, here,

there was no indication during the judge's questioning that any of the jurors had

already made up their minds as in Jenkins where the Court determined "a mistrial

should have been declared" because "minds were closed when the alternate

joined the deliberations." 182 N.J. at 133. Indeed, in appropriate circumstances,

even the specter of a deadlocked jury would not preclude substitution. See Ross,

218 N.J. at 154-55 (overruling State v. Banks, 395 N.J. Super. 205, 218-20 (App.

Div. 2007), "to the extent that it generally barred trial courts from substituting a

juror and directing new deliberations, by virtue of the fact that the original jury

had reached an initial impasse and was charged in accordance with [State v.

Czachor, 82 N.J. 392 (1980)]").

Defendant argues that his case "is akin" to State v. Williams, 377 N.J.

Super. 130 (App. Div. 2005). In Williams, we held that a mistrial should have

33 A-4452-14T1
been declared where "the jury had been deliberating for approximately twelve

hours" before the substitution and deliberated for "fifty-nine minutes" after the

substitution before convicting defendant of two counts of sexual assault. Id. at

150. We noted that "the length of the deliberations was substantially longer

prior to the removal and substitution . . . than afterwards[,]" and that it was

"highly doubtful that the jury could have been expected to begin its deliberations

anew as opposed to the deliberating jurors simply informing the substituted juror

of their respective positions . . . and then continuing deliberations from that

point." Ibid. However, we must hew to the guidance in Ross that "[n]o bright

line rule in respect of the length of jury deliberations triggers a finding that

deliberations have progressed too far to permit the substitution of an alternate."

218 N.J. at 149 (quoting Williams, 171 N.J. at 169).

Here, in denying defendant's motion for a mistrial, the judge considered

all relevant factors. We discern no abuse of discretion and defer to the judge's

evaluation following his thorough voir dire that there was no taint, and

conclusion that the reconstituted jury was able to engage in open and mutual

deliberations after the substitution. The judge determined the relevant facts

without compromising the integrity of the jury's deliberations, and meticulously

followed the guidance provided in Ross. "In challenging circumstances, the

[judge] ensured that defendant received a fair trial." Id. at 155.

34 A-4452-14T1
 IV.

In Point III, relying on extensive social science research on false

confessions, defendant challenges "[t]he current model charge on statements

made by defendants, which was given in this case," as "insufficient to instruct

the jury as to the dangers of false confessions." According to defendant, "unlike

the current Model Jury Charge On Identification, . . . the Model Charge on

Statements provides absolutely no reference to any specific factors, much less

any scientifically valid factors, for the jurors to employ in determining the

credibility of the statement." Thus, defendant "proffers that the trial court . . .

erred by . . . failing to recognize the inherent dangers relative to confession

evidence, and . . . failing to properly charge the jury about the dangers of false

confessions."

Because defendant did not object to the charge as given, or request any

alternate or additional instruction on confessions during the charge conference,

we review his contention for plain error and reverse "only if the error was

'clearly capable of producing an unjust result.'" State v. Ross, 229 N.J. 389, 407

(2017) (quoting R. 2:10-2). "The 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)).

35 A-4452-14T1
 Here, we find no error, much less plain error. As defendant admits, the

judge's instruction mirrored the Model Jury Charges (Criminal), "Statements of

Defendant" (rev. Jun. 14, 2010). "It is difficult to find that a charge that follows

the Model Charge so closely constitutes plain error." Mogull v. CB Commercial

Real Estate Grp., Inc., 162 N.J. 449, 466 (2000). Moreover, any sua sponte

deviation from the model jury charge by the judge may have undermined the

defense strategy, which relied on the truth of defendant's confession. In fact,

defense counsel repeatedly acknowledged the confession's veracity throughout

the trial. In her opening statement, defense counsel stated that she was "not

going to suggest" that defendant was not "responsible for his daughter's death,

because he [was]. He took responsibility for it. He never blamed anyone else."

She further explained, "[w]e're not here to tell you that he lied in his confession,

he confessed to what happened." In her summation, she reiterated:

The core of what you have to decide is really what my
client's intentions were at the time that these events
happened. Because as you have to be aware at this
point, there's really no dispute concerning the fact that
he caused the injury that caused her death[.] He
confessed to it. He said he did it.

We also reject defendant's reliance on social science research and studies

that were never presented to the judge or subjected to cross-examination by the

State. Thus, there is no developed record for us to consider. See State v.

36 A-4452-14T1
Herrera, 187 N.J. 493, 501 (2006) (declining to consider argument to expand

law regarding identification evidence admissibility because the defendant failed

to raise argument to trial court and failed to develop record incorporating current

research).

V.

Defendant argues in Point IV that even if the individual errors "did not

alone violate fundamental constitutional rights, in the aggregate these errors

denied [him] a fair trial under the State and Federal Constitutions." See State v.

Orecchio, 16 N.J. 125, 129 (1954) (holding that where "the legal errors are of

such magnitude as to prejudice the defendant's rights or, in their aggregate have

rendered the trial unfair, our fundamental constitutional concepts dictate the

granting of a new trial before an impartial jury"). However, because we

conclude there were no reversible errors, defendant's cumulative error argument

must fail.

VI.

Finally, in Point V, defendant challenges his sentence "to the maximum

life term" as "excessive and unduly punitive," arguing the judge's "methodology

was flawed" and "exemplified prohibited double counting," mandating "a

remand for resentencing." We disagree.

37 A-4452-14T1
 "Appellate review of the length of a sentence is limited." State v. Miller,

205 N.J. 109, 127 (2011). We will

affirm the sentence unless (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."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]

In sentencing defendant on the murder conviction, the judge found

aggravating factor one, "[t]he nature and circumstances of the offense, . . .

including whether or not it was committed in an especially heinous, cruel [,] or

depraved manner[,]" N.J.S.A. 2C:44-1(a)(1); aggravating factor two, "[t]he

gravity and seriousness of harm inflicted . . . , including whether or not the

defendant knew . . . that the victim . . . was particularly vulnerable or incapable

of resistance due to . . . ill-health, or extreme youth," N.J.S.A. 2C:44-1(a)(2);

aggravating factor three, "[t]he risk that the defendant will commit another

offense[,]" N.J.S.A. 2C:44-1(a)(3); and aggravating factor nine, "[t]he need for

deterring the defendant and others from violating the law[,]" N.J.S.A. 2C:44-

1(a)(9). Based on the fact that defendant's two prior arrests did not result in

convictions, the judge found mitigating factor seven, "[t]he defendant has no

38 A-4452-14T1
history of prior delinquency or criminal activity[,]" N.J.S.A. 2C:44-1(b)(7).

However, the judge "apportion[ed] so much weight to the vulnerability of the

victim . . . and to the need to deter defendant and others, that [the] aggravating

factors vastly outweigh[ed] [the] mitigating factor[.]"

Defendant challenges the judge's findings as to aggravating factors one

and three. In finding aggravating factor one, the judge explained that "[t]he

blows inflicted and the injuries caused by those blows, according to the

evidence, were many more than the blows necessary to cause her death." The

judge acknowledged that "[it was] not double counting" to consider "those extra

blows" that defendant "reigned down upon [his daughter.]" Contrary to

defendant's assertion, the judge's finding was supported by "competent credible

evidence" in the record, State v. O'Donnell, 117 N.J. 210, 215 (1989), and did

not constitute impermissible double counting. "[A] sentencing court may justify

the application of aggravating factor one, without double-counting, by reference

to the extraordinary brutality involved in an offense." Fuentes, 217 N.J. at 75.

In finding aggravating factor three, referring to defendant's admission that

he struck his daughter out of anger, the judge queried:

How can that risk [that defendant will commit another
offense] be discounted when . . . defendant, in a
murderous rage, killed his own flesh and blood? What
evidence is there to detract from the proposition that,
confronted once more with someone who [piques] his

39 A-4452-14T1
 anger, he will not lash out at them as well, violently.
And therefore, there is the risk that he'll commit another
offense.

The judge also pointed to the fact that "[defendant] expressed no remorse," and

his "nonchalan[t]" attitude during police questioning "[was] astounding."

Defendant argues that the judge erred in finding aggravating factor three

when he had "no prior indictable convictions and all other contacts with law

enforcement resulted in dismissals." However, aggravating factor three "can be

based on assessment of a defendant beyond the mere fact of a prior conviction,

or even in the absence of a criminal conviction." State v. Thomas, 188 N.J. 137,

154 (2006). Moreover, "[a]dult arrests that do not result in convictions may be

'relevant to the character of the sentence . . . imposed.'" State v. Rice, 425 N.J.

Super. 375, 382 (App. Div. 2012) (quoting State v. Tanksley, 245 N.J. Super.

390, 397 (App. Div. 1991)).

We are "bound to affirm a sentence, even if [we] would have arrived at a

different result, as long as the trial court properly identifies and balances

aggravating and mitigating factors that are supported by competent credible

evidence in the record[,]" as occurred here. O'Donnell, 117 N.J. at 215.

Accordingly, on this record, we discern no basis to intervene.

Affirmed.

40 A-4452-14T1