STATE OF NEW JERSEY VS. ARCADIO J. NOVA (14-02-0094, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1915-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARCADIO J. NOVA, a/k/a
JUNIOR NOVA,

Defendant-Appellant.
_____________________________

Argued January 23, 2019 – Decided February 15, 2019

Before Judges Yannotti, Rothstadt and Natali.

On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 14-02-0094.

Roberto J. Espinosa argued the cause for appellant
(Harkavy, Goldman, Goldman & Gerstein, PA,
attorneys; Roberto J. Espinosa and Martin S. Goldman,
on the brief).

Ali Y. Ozbek, Assistant Prosecutor, argued the cause
for respondent (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Tom D. Osadnik, Assistant
Prosecutor, of counsel and on the brief).
 Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant was tried before a jury and found guilty of first-degree

kidnapping, contrary to N.J.S.A. 2C:13-1(b)(1), and other offenses. The trial

court sentenced defendant to an extended term of life imprisonment, with a

period of parole ineligibility as prescribed by the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction dated

December 3, 2015. We affirm.

I.

In February 2014, a Passaic County grand jury returned an indictment

charging defendant with second-degree attempting to lure or entice a minor,

N.J.S.A. 2C:13-6 (count one); first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(1) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(b)

(count three); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(a) (count four); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count five);

and third-degree failure to timely verify his address with law enforcement

authorities, as required by Megan's Law, N.J.S.A. 2C:7-2(a), N.J.S.A. 2C:7-2(c),

(d), and (e) (count six). Thereafter, the trial court severed count six and in July

2015, defendant was tried before a jury on the other charges.

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2
 At the trial, D.D. testified that on July 3, 2013, a man came to her

apartment to install a cable for DirecTV. The apartment is on the third floor of

the building, and D.D. resided there with her eight-year-old daughter S.L., her

friend G.M., and G.M.'s two-month-old child. D.D. stated that the cable man

arrived at around 2:00 p.m. to examine the apartment. He went into G.M.'s room

and left after about fifteen or twenty minutes. The man stated that he would

return later that day with his tools. D.D. said the man returned at around 7:00

p.m., and S.L. went downstairs and let him into the apartment.

S.L. testified that she was in G.M.'s room when the man first came to the

apartment and she let him in. The man left but came back later that day. At that

time, D.D., G.M., and G.M.'s child were home. S.L. went downstairs, let the

man in, and took him upstairs to the kitchen. S.L. was in the kitchen with her

mother, and G.M. was in her room.

After he entered the apartment, the man asked S.L. to hold the door at the

main entrance to the building open for him while he got additional materials.

S.L. went downstairs and the man came down. When the man returned to the

main entrance, he locked the door. He kept S.L. in a small space near the

entrance and told her they were going to "play a little game."

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 S.L. testified that the man gave her several items to hold. He told S.L. to

kneel down and blindfolded her with a black plastic bag that he took out of his

pocket. Next, the man took a fresh stick of gum and placed it on S.L.'s lips.

Afterwards, the man held up his fingers and asked S.L. to identify how many

fingers he was holding up. When she correctly identified the number of fingers,

he tightened the black bag around her eyes.

According to S.L., the man inserted part of his penis into her mouth for

approximately one minute. The incident stopped when S.L. heard her mother

calling for her. S.L. ran upstairs and the man left. The black bag was still around

S.L.'s neck. She was upset and crying. She told her mother what had happened.

D.D. testified that initially, she did not understand what S.L. was trying

to tell her, and she questioned her further. S.L. confirmed that the cable man

had placed his penis in her mouth. D.D. testified that S.L. also told her

defendant had placed her on her knees, put his hand on her shoulder, told her

not to move, and stated that he was recording the incident. D.D. called 9-1-1

and then she, G.M., and S.L. went to the police station.

There, they met Officer Haydee Santana. According to Santana, D.D. and

S.L. were hysterical. They told Santana that the suspect was a Hispanic male of

Dominican descent and that he worked for DirecTV. They gave Santana

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defendant's phone number. G.M. obtained the number from the owner of a

restaurant, where she saw someone installing cable. G.M. contacted defendant

to install cable in the apartment.

Officer Michael Johnson testified that he and two other officers

investigated the crime scene. Johnson recovered the black plastic bag that the

suspect used to blindfold S.L. He also recovered a drill. Johnson testified that

the police were not able to recover any fingerprints from the plastic bag.

Detective Maria Tejada of the Passaic County Prosecutor's Office (PCPO)

was assigned to identify the suspect. She went to a bookstore that defendant

owned. Defendant was outside working on a truck that was registered to

defendant's name. Tejada went into the store and asked an employee about a

book. The employee went outside and spoke with defendant.

Defendant entered the store and spoke with Tejada about the book. He

was wearing a blue uniform with a gold DirecTV logo on it. Tejada asked

defendant about getting DirecTV installed in her home, and they discussed the

installation. He gave her a pamphlet with his phone number on it. The phone

number was the same number that D.D. had provided to the police.

Detective Danielle D'Annibale testified that the PCPO obtained

information confirming the number was registered to defendant's cellphone.

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After defendant was arrested, the police confiscated his phone. Initially, the

PCPO's computer services unit was unable to bypass the phone's security

features. However, Henry Hernandez, who works in the PCPO's computer

services unit, eventually bypassed the phone's passcode requirement. There

were 116 photos on the phone. The State sought to admit evidence regarding

two of those photos.

At trial, the judge permitted Hernandez to testify as an expert witness in

forensic data extraction. He explained that the first image was a photo of a

young child with something over her eyes and a penis in her mouth. The second

image was a photo of the same child with a penis in front of her face. The photos

were on defendant's cellphone when he was arrested. The judge admitted the

photos into evidence.

Giselle Henriquez, a bilingual interview specialist for the PCPO, testified

that she interviewed S.L. a few days after the incident. The interview was

recorded and the recording played for the jury. In the interview, S.L. stated that

the man who came to the apartment to install the cable asked her to hold the

door for him.

S.L. said the man retrieved materials, tied a black plastic bag around her

eyes, and placed his penis in her mouth. The man also told her he was recording

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the event and would be placing it on YouTube. S.L. said the incident made her

upset and caused her to worry that the man would hurt other children.

Henriquez testified that after conducting the interview of S.L., S.L. was

presented with an array of photographs that had been compiled by Detectives

Michael Boone and D'Annibale. According to Henriquez, S.L. positively

identified defendant as the perpetrator. S.L. stated that she was "100 percent

certain" that defendant was the person who committed the offenses.

Henriquez separately showed D.D. the photo array. She selected

defendant's photo and said he looked familiar, but she was unable to say with

certainty that he was the man who came to the apartment. Henriquez also

separately showed the photo array to G.M. She selected defendant's photograph,

but she could not state with certainly that he was the perpetrator.

Defendant did not testify, and he did not present any witnesses in his

defense.

The jury found defendant guilty on all five counts. In August 2015, the

judge granted the State's motion to dismiss count six, in which defendant was

charged with failing to comply with Megan's Law. On December 3, 2015, the

judge denied defendant's motion for a judgment of acquittal or a new trial,

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granted the State's motion for an extended term pursuant to N.J.S.A. 2C:44-3(a),

and sentenced defendant. This appeal followed.

On appeal, defendant's appellate counsel raises the following arguments:

POINT I
THE TRIAL COURT ERRED IN ALLOWING
PREJUDIC[I]AL PICTURES OF CHILD
PORNOGRAPHY UNRELATED TO DEFENDANT'S
CASE TO BE USED AT TRIAL UNDER [N.J.R.E.]
404(b).

POINT II
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S REQUEST FOR A MISTRIAL
AFTER [THE] STATE'S WITNESS TESTIFIED TO
INADMISSIBLE EVIDENCE.

POINT III
THE TRIAL COURT ERRED IN ITS DECISION TO
REQUIRE DEFENDANT TO GO THROUGH PLEA-
CUT OFF BEFORE PRE-TRIAL MOTIONS WERE
COMPLETED.

POINT IV
DEFENDANT IS [ENTITLED TO] A NEW TRIAL
BASED ON INEFFECTIVE ASSISTANCE OF
COUNSEL (Not Raised Below).

POINT V
THE TRIAL COURT ERRED IN ITS DECISION TO
CHARGE THE JURY ON A DEFINITION OF
KIDNAPPING THAT DID NOT APPLY TO [THIS]
CASE.

A-1915-15T2
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 POINT VI
[DEFENDANT'S] SENTENCE SHOULD BE
OVERTURNED BECAUSE IT WAS
UNCONSTITUTIONAL, GIVEN AGAINST THE
COURT'S PROCEDURES PUT IN PLACE UNDER
THE RULES OF COURT AND OVERLY
EXCESSIVE AFTER BALANCING [THE]
AGGRAVATING AND MITIGATING FACTORS
(Partially Raised Below).

[A]. IT WAS NEVER CONFIRMED WHETHER
[DEFENDANT] WAS REPRESENTED BY
COUNSEL IN HIS NEW YORK MISDEMEANOR
CONVICTION FOR SEXUAL ABUSE AND
[THEREFORE, THE STATE'S MOTION FOR AN
EXTENDED TERM] SHOULD NOT HAVE BEEN
GRANTED (Not Raised Below).

[B.] THE STATE FAILED TO FILE A MOTION
SEEKING AN EXTENDED TERM WITHIN
[FOURTEEN] DAYS AFTER CONVICTION AND
FAILED TO PROVIDE GOOD CAUSE FOR ITS
MISTAKE.

[C.] THE TRIAL COURT FAILED TO PROPERLY
BALANCE AGGRAVATING AND MITIGATING
FACTORS WHICH [RESULTED IN] AN OVERLY
EXCESSIVE SENTENCE (Not Raised Below).

Defendant has also filed a pro se supplemental brief in which he presents

the following argument:

THE TRIAL COURT ERRED IN ITS DECISION NOT
TO EXCUSE FOR CAUSE A JUROR WHO
APPEARED BIASED; AND WHO, BY HIS OWN
WORDS, STATED THAT HE CANNOT GIVE BOTH
SIDES A FAIR TRIAL. THIS WAS A CLEAR

A-1915-15T2
9
 VIOLATION OF DEFENDANT'S RIGHT TO AN
IMPARTIAL JURY, GUARANTEED UNDER BOTH
FEDERAL AND STATE CONSTITUTIONS. U.S.
CONST. AMENDS. VI, XIV; N.J. CONST. ART. 1[,]
PARA. 10.

II.

We first consider defendant's contention that the trial judge erred by

allowing the State to introduce the two photographs recovered from his

cellphone. As stated previously, the photographs depicted a young girl,

approximately seven or eight years old, with a dark-colored bag tied around her

head and eyes, and a penis in her mouth. The young girl appeared to be of

Hispanic origin, and the police could not determine if defendant had taken the

photos. The State agreed that S.L. was not the young girl shown in the

photographs.

A trial court's evidentiary rulings are reviewed under a "deferential

standard" and will not be disturbed unless shown to be a mistaken exercise of

discretion or inconsistent with the applicable law. State v. Perry, 225 N.J. 222,

233 (2016); State v. T.J.M., 220 N.J. 220, 233-34 (2015). We will not set aside

a trial court's evidentiary ruling unless it is "so wide of the mark" as to result in

"a manifest denial of justice." Perry, 225 N.J. at 233 (quoting State v. Kelly, 97

N.J. 178, 216 (1984)).

A-1915-15T2
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 Here, the trial court found that the photos were admissible under N.J.R.E.

404(b), which governs the admission of evidence of "other crimes, wrongs or

acts." State v. Rose, 206 N.J. 141, 180 (2011) (quoting N.J.R.E. 404(b)).

N.J.R.E. 404(b) states that

[e]xcept as otherwise provided by [N.J.R.E.] 608(b),
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.
Such 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.

To determine if evidence is admissible under N.J.R.E. 404(b), the court

undertakes an analysis using the four-part test adopted in State v. Cofield, 127

N.J. 328, 338 (1992). First, the evidence "must be admissible as relevant to a

material issue." Ibid. Second, the evidence "must be similar in kind and

reasonably close in time to the offense charged." Ibid. Third, "[t]he evidence

of the other crime must be clear and convincing." Ibid. Fourth, "[t]he probative

value of the evidence must not be outweighed by its apparent prejudice." Ibid.

If the evidence is admissible, the trial court must instruct the jury on the

use of the evidence. Id. at 340-41. The instructions should focus the jury's

attention on the limited purposes for which evidence is admissible, precisely

A-1915-15T2
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explain the permitted and prohibited uses of the evidence, and provide sufficient

reference to the facts of the case to allow the jury to understand the fine

distinctions in the jury instruction. Id. at 341.

Here, the judge undertook the analysis required by Cofield. The record

supports the judge's finding that the photos are admissible under N.J.R.E.

404(b). As noted previously, the first Cofield factor requires the court to find

that the evidence is relevant to a material issue in the case. Cofield, 127 N.J. at

338. Relevant evidence is "evidence having a tendency in reason to prove or

disprove any fact of consequence to the determination of the action." N.J.R.E.

401.

Defendant has denied that he was the person who kidnapped and assaulted

S.L.; therefore, identification was a material issue in this matter. The judge

found that the photos were relevant to identification. As the judge noted, the

photos depict an incident that is virtually identical to the aggravated sexual

assault for which defendant was charged.

Because the photos were on defendant's cellphone, and the phone was in

his possession when he was arrested, the photos had a "tendency in reason" to

establish that defendant was, in fact, the person who committed the charged

offenses. Even if defendant was not the man shown in the photos, a jury could

A-1915-15T2
12
reasonably assume he had engaged in the same unlawful conduct. The record

therefore supports the judge's finding that the photographs were "highly material

to the issue of identity."

Regarding the second Cofield factor, the judge again pointed out that the

photos depicted an incident that was "extraordinarily similarly" to what was

alleged to have occurred in this case. The judge observed that it was not clear

when the photos were taken; however, defendant was in possession of the phone

with the photos when he was arrested, which was twelve days after the alleged

offenses were committed. Moreover, S.L. testified that the perpetrator told her

he was recording the incident and intended to place the recording online.

Addressing the third Cofield factor, the judge found that there was clear

and convincing evidence the photos showed a person engaged in a sexual assault

that was "virtually identical" to the alleged assault upon S.L. The judge noted

that the photographs were found on defendant's phone at the time of his arrest

and depicted an incident that is strikingly similar to the crime against S.L.

With regard to the fourth Cofield factor, the judge determined that the

probative value of the photos for the purposes of identification was not

outweighed by their prejudicial nature. Furthermore, the judge provided the jury

with a detailed instruction regarding the use of the evidence and made it clear

A-1915-15T2
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that the photographs were not of S.L., and that the evidence could not be

considered for any purpose other than identification.

On appeal, defendant argues that the only reason for admitting the

photographs was to show that he had a propensity to commit sexual assaults of

the type charged. He acknowledges that identity was an issue in the case, but

argues that the State already had S.L.'s identification and testimony by D.D. and

G.M. that provided "some indication" he was the person who attacked S.L.

Defendant asserts that once the photos were introduced, a jury was unlikely to

believe S.L.'s identification was inaccurate. He contends he did not have a

chance for a fair trial after the judge admitted the photos into evidence.

We are not persuaded by these arguments. The judge properly admitted

the evidence on the issue of identity pursuant to N.J.R.E. 404(b). The record

supports the judge's findings on the Cofield factors. In addition, the judge

instructed the jurors that they could only consider the photos on the issue of

identity. The judge emphasized that the jury could not consider the evidence as

proof that defendant "has a disposition or tendency" to engage in criminal

conduct of the sort charged.

Defendant asserts that he was prejudiced by the admission of the

photographs, but as the judge found, the probative value of the evidence

A-1915-15T2
14
outweighed any prejudice resulting from their admission. The record supports

that determination.

The trial court's decision to admit the photos on the issue of identification

is consistent with State v. Gillispie, 208 N.J. 59 (2011). In that case, the

defendant and others were charged with the commission of murders and other

offenses in Barnegat. Id. at 67. At trial, the State sought to introduce evidence

concerning the defendant's participation in a robbery and shooting that took

place twenty days earlier in New York. Ibid.

The trial court conducted a hearing pursuant to N.J.R.E. 104, and the State

presented evidence that showed, among other things, the same gun was used in

the Barnegat murders and the New York robbery. Id. at 68. The trial court

considered the Cofield factors and determined that the evidence was admissible

on the issue of identity. Id. at 68-69.

The Supreme Court held that the trial court correctly found that the first

three of the Cofield factors were satisfied, but the admission of details of the

New York robbery was unduly prejudicial and should not have been admitted.

Id. at 92. The Court concluded, however, that the error was harmless. Id. at 93-

94.

A-1915-15T2
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 In its decision, the Court commented on the admission of evidence of other

crimes as evidence of the issue of identification. Id. at 86-87. The Court stated

that to be admissible on the issue,

[t]he prior criminal activity with which defendant is
identified must be so nearly identical in method as to
earmark the crime as defendant's handiwork. The
conduct in question must be unusual and distinctive so
as to be like a signature, and there must be proof of
sufficient facts in both crimes to establish an unusual
pattern.

[Id. at 87 (quoting State v. Fortin, 162 N.J. 517, 532
(2000)).]

As we have explained, in this case, the photos depicted a person engaged

in criminal conduct that was essentially the same as the sexual assault for which

defendant was charged. The State agreed that S.L. was not the young girl in the

photos, and could not establish that defendant was the man whose penis was

shown in the photographs. However, the criminal activity depicted in the photos

was "nearly identical in method" to the sexual assault at issue, and would support

the inference that the sexual assault upon S.L. was "defendant's handiwork."

Ibid. Therefore, Gillispie supports the trial court's determination that the photos

were admissible under N.J.R.E. 404(b) on the issue of identification.

In support of his argument that the admission of the photos is reversible

error, defendant relies upon State v. Skinner, 218 N.J. 496 (2014). In that case,

A-1915-15T2
16
the Court held that the defendant's rap lyrics could not be admitted to show his

motive or intent to commit murder because they had little or no probative value,

were a form of self-expression, and were unduly prejudicial. Id. at 499-500. In

this case, however, the photographs were directly relevant to the issue of

identification, and the probative value of this evidence outweighed the prejudice

to defendant from their admission. Thus, defendant's reliance upon Skinner is

misplaced.

We therefore conclude the judge's decision to admit the photos into

evidence was not a mistaken exercise of discretion.

III.

Next, defendant argues that the trial judge erred by denying his motion for

a mistrial after Santana testified that defendant's wife called G.M. while she was

at the police station with D.D. and S.L. reporting the kidnapping and assault.

Defendant argues that the judge's curative instruction was insufficient to address

the prejudicial impact of the evidence.

The decision on a motion for a mistrial is committed to the sound

discretion of the trial judge. State v. Harris, 181 N.J. 391, 518 (2004); see also

State v. Hogan, 297 N.J. Super. 7, 14-15 (App. Div. 1997) (stating that an

appellate court gives great deference to the trial court's decision on a motion for

A-1915-15T2
17
a mistrial). A trial court should only grant a mistrial when necessary to prevent

a "manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969). We review

the trial court's ruling on a motion for a mistrial under an abuse of discretion

standard. State v. Harvey, 151 N.J. 117, 205 (1997).

Here, the record shows that the assistant prosecutor asked Santana if S.L.

had provided any information when she and her mother came to the police

station. Santana replied, "they told me that [the perpetrator] was [a] Hispanic

male of Dominican descent. And that he worked for Direct TV." The prosecutor

then asked Santana whether "anyone" was "able to provide any sort of contact

information for the alleged suspect." Santana replied, "As I got information, the

suspect's wife called my victim --."

Defendant objected to Santana's statement and the judge sustained the

objection. Defendant then moved for a mistrial, which the judge denied. The

judge decided to instruct the jury that Santana's statement was "inaccurate" and

had no place in the trial. The assistant prosecutor objected because such an

instruction would give the jury the impression that Santana was not a credible

witness.

The judge overruled the objection and instructed the jury that Santana had

misspoken and the statement was inaccurate. The judge told the jury it could

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consider Santana's misstatement in weighing her credibility. The judge then

polled the individual jurors to determine whether each juror understood and

accepted the instruction. The jurors indicated they understood the instruction

and would follow it.

On appeal, defendant argues that the judge erred by denying the motion

for a mistrial. Defendant argues that Santana's statement substantially

prejudiced the defense because the jury was informed that his wife called G.M.

shortly after the incident and tried "to explain the situation." He further argues

that the curative instruction only served to highlight the prejudicial testimony.

We disagree.

The record shows that the assistant prosecutor did not ask Santana to

identify the person who provided contact information about defendant. Indeed,

the prosecutor informed the judge that Santana had been specifically instructed

not to mention the call. Despite that instruction, Santana stated that defendant's

wife had called G.M., but Santana gave no details concerning the call. The judge

immediately addressed the objection.

The decision on whether the admission of inadmissible evidence can be

"cured by a cautionary or limiting instruction, or instead requires the more

severe response of a mistrial, is" a decision committed to the discretion of the

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trial judge "who has the feel of the case and is best equipped to gauge the effect

of a prejudicial comment on the jury in the overall setting." State v. Winter, 96

N.J. 640, 646-47 (1984). Furthermore, "[t]he adequacy of a curative instruction

necessarily focuses on the capacity of the offending evidence to lead to a verdict

that could not otherwise be justly reached." Id. at 647 (citing State v. Macon,

57 N.J. 325, 335 (1971)).

Here, the trial judge reasonably determined that a curative instruction

could effectively address the potential prejudice to defendant from Santana's

statement. We defer to the judge's determination because the judge was able to

gauge the effect Santana's statement would have on the jury.

In light of that instruction, we cannot conclude that Santana's statement

had the capacity to lead the jury to reach a verdict it would not have otherwise

reached. We therefore conclude the judge's decision to deny defendant's motion

for a mistrial was not a mistaken exercise of discretion.

IV.

Defendant further argues he was denied due process because the trial

judge did not permit him to enter a plea on the morning the jury was to be

selected. Defendant argues that the judge erred by establishing a plea cut-off

before the judge had decided all of the pre-trial motions. He notes that after the

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plea cut-off date, the State informed the defense that S.L. was not the person

depicted in the photos found on his phone.

Defendant also asserts that "just days before trial," the judge ruled that the

photos could be admitted as evidence to prove his identity as the perpetrator.

Defendant contends he could not have a knowing and intelligent discussion with

his attorney on the State's plea offers before the plea cut-off date because he did

not know all the evidence that could have been used against him at trial.

The record shows that on July 14, 2015, before jury selection was to begin,

defendant asked if the State's plea offer was still available. The assistant

prosecutor informed the judge and defendant that the offer was no longer

available, that defendant had rejected the State's last plea offer, and that the

judge was not authorized to accept or consider a plea at that time.

The judge explained that "[i]f there is going to be a resolution, it cannot

be on the morning of trial, absent some compelling circumstance and i t cannot

be just prior to trial" because the court has the duty to conduct trials fairly and

efficiently. The judge stated the plea cut-off rule precludes the court from

accepting pleas at the last minute, subject to certain exceptions. The judge

noted, however, that the State's plea offer was no longer available. Therefore,

the issue of whether defendant should be permitted to enter a plea was moot.

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 The record also shows that on December 1, 2015, while addressing

defendant's motions for a judgment of acquittal or new trial, the judge noted that

the grand jury had returned the indictment in February 2014 and defendant had

rejected the State's plea offers as late as April 27, 2015. The State's last plea

offer was for a twenty-year prison term. The State had previously offered a

fifteen-year term. The judge also pointed out that defendant had refused to sign

the pre-trial memo, and "[h]e was adamant that he wanted to reject the plea

offer."

The judge observed that once the State withdraws its offer for a plea

agreement, the State is under no obligation to resubmit the offer. The judge

recognized that the State had not been able to retrieve the photos from

defendant's phone earlier, until several months before the trial. The judge

nevertheless noted that the State had withdrawn its offer before defendant

indicated an interest in entering a plea, and determined that the State had no

obligation to resubmit the offer at that time.

We are convinced that the judge correctly decided she could not accept a

plea from defendant. Plea agreements require a meeting of the minds. State v.

Diorio, 422 N.J. Super. 445, 462 (App. Div. 2011), aff'd in part, rev'd in part on

other grounds, 216 N.J. 598 (2014). A defendant cannot accept a plea offer

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22
which has been withdrawn or has lapsed by its own terms unless the State

resubmits the offer. Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on

R. 3:9-3(b) (2019). The trial court may not accept a plea based on a withdrawn

or lapsed offer. See State v. Williams, 277 N.J. Super. 40, 48-49 (App. Div.

1994). Here, the record shows that after the plea cut-off date, the State withdrew

its plea offer and the assistant prosecutor was not authorized to enter into a plea

agreement. The judge correctly determined she could not compel the State to

accept a plea.

V.

Defendant also argues that the trial judge erred by charging the jury on

kidnapping. He therefore contends his conviction for kidnapping should be

reversed.

As we stated previously, defendant was charged with kidnapping contrary

to N.J.S.A. 2C:13-1(b) (1). The statute provides that:

[a] person is guilty of kidnapping if he unlawfully
removes another from his place of residence or
business, or a substantial distance from the vicinity
where he is found, or if he unlawfully confines another
for a substantial period, with any of the following
purposes:

(1) To facilitate commission of any crime or
flight thereafter; . . . .

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23
 [Ibid.]

Furthermore, N.J.S.A. 2C:13-1(d) states that for purposes of kidnapping

under N.J.S.A. 2C:13-1, 13-2, and 13-3:

[a] removal or confinement is unlawful . . . if it is
accomplished by force, threat, or deception, or, in the
case of a person who is under the age of 14 or is
incompetent, if it is accomplished without the consent
of a parent, guardian, or other person responsible for
general supervision of his welfare.

In this case, while instructing the jury on kidnapping, the judge stated in

relevant part:

Now, in order for you to find the defendant guilty of
kidnapping, the [S]tate is required to prove each of the
following two elements to you beyond a reasonable
doubt.

One, that the defendant, . . . unlawfully removed [S.L.]
from her place of residence . . . meaning the apartment
. . . where she lived. Or, unlawfully removed [S.L.], a
substantial distance from the vicinity where she was
found. Or, unlawfully confined [S.L.] for a substantial
period. So, (a), and (b), and (c) is a and/or (b) and/or
(c).

And two, that the removal or confinement was with the
purpose to facilitate the crime – the commission of the
crime or flight thereafter.

Now, in relation to the first element, you will note that
I’ve used the terms "unlawfully removed" and/or
"unlawfully confined." A removal or confinement is
unlawful if it is accomplished by force, threat or

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24
 deception and/or in the case of a person who is under
age fourteen, it is accomplished without the consent of
the parent, guardian or other person responsible for the
general supervision of her – of her welfare.

[Emphasis added.]

On appeal, defendant argues that the judge's use of the term "and/or"

instead of "or" changed the meaning of N.J.S.A. 2C:13-1(d), and created an

additional basis for the jury to determine that a kidnapping occurred in this case.

Defendant contends that the judge's instruction allowed the jury to find him

guilty of kidnapping under the theory of unlawful removal where the parent

consented to the removal, but did so based on deception.

We note that defendant did not raise this issue in the trial court. Therefore,

we consider whether the judge's instruction was erroneous and, if so, whether

the error constitutes plain error. R. 2:10-2. As applied to jury instructions, plain

error is an error that "prejudicially affect[s]" a defendant's substantial rights in

a "sufficiently grievous" manner which has the "clear capacity to bring about an

unjust result." State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v.

Jordan, 147 N.J. 409, 422 (1997)).

We are not convinced the judge's use of the term "and/or" in defining an

unlawful "removal or confinement" constitutes plain error. The judge's use of

the term "and/or" rather than "or" did not substantially change the meaning of

A-1915-15T2
25
the statute, and did not create an additional basis for finding an unlawful

"removal or confinement" under N.J.S.A. 2C:13-1(b)(1).

Considered in its entirety, the instruction indicates that defendant could

be found guilty of kidnapping if the removal or confinement was either by

deception or, in the case of a child less than fourteen years of age, was

accomplished without the consent of a parent or guardian. The use of the phrase

"and/or" essentially meant that there were two alternative bases for finding an

unlawful "removal or confinement."

Even if the judge's use of the term "and/or" in defining an unlawful

"removal or confinement" created some ambiguity and therefore could be

viewed as erroneous, the error was not "clearly capable of producing an unjust

result." R. 2:10-2. We are not convinced the judge's instruction led the jury to

reach a verdict on the kidnapping charge it would not otherwise have reached .

The evidence established that S.L. was removed and confined without her

mother's consent. It also established she was removed and confined by

deception. Therefore, we reject defendant's argument that his conviction for

kidnapping should be reversed.

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26
 VI.

Defendant also contends that his convictions should be reversed because

he was denied the effective assistance of counsel. Defendant argues that his trial

attorney was deficient in failing to cross-examine S.L., and counsel's failure to

attack the victim's credibility and identification prejudiced the defense.

However, the New Jersey courts generally adhere to a policy against

entertaining ineffective-assistance-of-counsel claims on direct appeal. State v.

Preciose, 129 N.J. 451, 460 (1992). Such claims should be raised in a petition

for post-conviction relief (PCR) because they involve facts that "often lie

outside the trial record and because the attorney's testimony may be required."

Id. at 462

Accordingly, we decline to address defendant's claim of ineffective

assistance of counsel. He may pursue that claim in a PCR petition, which must

be filed in accordance with the court's rules.

VII.

In his pro se supplemental brief, defendant argues that he was denied his

right to a fair trial because the judge did not excuse a prospective juror who

allegedly admitted he could not be fair and impartial, was biased in favor of law

enforcement, and had difficulty understanding and speaking English.

A-1915-15T2
27
 The trial judge has "considerable discretion in determining the

qualifications of prospective jurors." State v. DiFrisco, 137 N.J. 434, 459

(1994). In this case, defense counsel did not object to the juror being added to

the panel. Because defendant did not ask the judge to excuse the juror, he must

show that the judge's decision to allow the juror to serve constituted plain error,

that is, an error "clearly capable of producing an unjust result." R. 2:10-2; see

also Afanador, 151 N.J. at 54.

The record shows that during voir dire, the judge questioned the juror

regarding his ability to fairly consider the testimony of a law enforcement

officer. The juror stated that his nephew works in the Passaic County jail, but

he saw him only "three or four times a year," and they did not have a close

relationship.

At one point, the juror indicated he would generally favor the testimony

of a law enforcement officer; however, when questioned further, he stated he

would not favor the officer's testimony merely because he or she was an officer.

The juror stated he had to listen and hear the testimony and consider it.

The judge also questioned the juror to determine if he could remain fair

and impartial. The juror stated that everyone is presumed innocent, unless the

State proved his or her guilt. The juror stated he believed he could be fair and

A-1915-15T2
28
impartial. He indicated that he understood defendant did not have to present

any evidence or testify on his own behalf, and the State had the burden of proof.

The record shows that the juror spoke with a heavy accent. Although the

juror had some difficulty expressing himself in English, defense counsel told the

judge the juror understood everything "perfectly" and she had no objection to

him serving on the jury. The judge found that the juror could be fair.

We are convinced there is sufficient credible evidence in the record to

support the judge's findings. Defendant has not shown that the judge's failure

to excuse the juror constituted plain error.

VIII.

Defendant argues that the trial judge erred by granting the State's motion

for an extended term pursuant to N.J.S.A. 2C:44-3(a). He also contends the

judge failed to properly balance the aggravating and mitigating factors, and the

resulting sentence is excessive and unconstitutional. We find no merit in these

arguments.

A. Extended Term

Defendant argues that the State failed to file its motion for an extended

term within fourteen days after the return of the jury's verdict, as required by

Rule 3:21-4(e). The rule permits the court to extend the time for filing the

A-1915-15T2
29
motion by "good cause shown." Ibid. Here, the jury returned its verdict on July

27, 2015, and the State filed the motion three days later on July 30, 2015. Thus,

the initial motion was timely pursuant to the rule.

However, in its motion, the State identified the wrong indictment and

count for which it was seeking an extended term. The State then filed a motion

to amend the motion. The judge properly exercised her discretion under Rule

3:21-4(e) in granting the State's motion.

The State established good cause to correct the errors in the earlier-filed

motion. The record supports the judge's finding that defendant was on notice

the State would be seeking an extended term, and defendant suffered no

prejudice by allowing the State to correct the mistakes.

Defendant also argues that the judge erred by finding he was eligible for

an extended term pursuant to N.J.S.A. 2C:44-3(a). The statute provides that an

extended term may be imposed if

[t]he defendant has been convicted of a crime of the
first, second or third degree and is a persistent offender.
A persistent offender is a person who at the time of the
commission of the crime is [twenty-one] years of age
or over, who has been previously convicted on at least
two separate occasions of two crimes, committed at
different times, when he was at least [eighteen] years of
age, if the latest in time of these crimes or the date of
the defendant's last release from confinement,

A-1915-15T2
30
 whichever is later, is within [ten] years of the date of
the crime for which the defendant is being sentenced.

Here, the judge found that defendant was forty-one years old, and

committed the offense for which the State was seeking an extended term when

he was twenty-one years of age or older. Copies of records obtained from the

Supreme Court of New York show that defendant has two prior convictions in

that state. The records state that defendant was convicted of first-degree robbery

and second-degree sexual abuse of a child under the age of fourteen.

Defendant committed the former offense in 1998, and he committed the

latter offense within ten years of the date when he committed the offenses at

issue in this case. Thus, there is sufficient credible evidence in the record to

support the judge's finding that defendant was eligible for an extended term.

On appeal, defendant argues that he was not eligible for an extended term

as a persistent offender under N.J.S.A. 2C:44-3(a) because the State failed to

establish that his New York convictions were obtained in a constitutionally-

permissible manner. He argues that his prior convictions are presumptively void

because the records pertaining to those convictions do not show he was

represented by counsel in those proceedings.

Defendant did not, however, raise this issue at sentencing, and he

presented no evidence showing that he was not represented by counsel when he

A-1915-15T2
31
pled guilty to the offenses for which he was convicted in New York. In this

regard, we note that the records pertaining to defendant's New York convictions

do not identify the attorneys for the State or defendant.

In support of his argument that the judge erred by finding him eligible for

an extended term, defendant relies upon State v. Marshall, 244 N.J. Super. 60,

63-64 (Law. Div. 1990). In that case, the defendant sought PCR, arguing that

the court had erred by using his out-of-state conviction for armed robbery as a

basis for finding that he was a persistent offender and imposing an extended

sentence. Id. at 63.

In Marshall, the judge observed that "[w]here the record of a prior

conviction shows, on its face, that a defendant was not represented by counsel,

the prior conviction is presumptively void." Id. at 66. The judge stated,

however, that where a prior conviction is not presumptively void, it can be used

to impose additional penalties. Id. at 66-67.

The judge in Marshall noted that a defendant should challenge any

allegedly unconstitutional sentences in the appropriate jurisdiction and cannot

by-pass another state's judicial process by collaterally attacking those criminal

judgments in New Jersey. Id. at 68-69. The judge therefore held that the

defendant's prior out-of-state conviction was presumptively valid and was

A-1915-15T2
32
properly considered in determining whether he was eligible for an extended-

term sentence. Id. at 69.

In this case, the records of defendant's prior New York convictions do not

show that either conviction is presumptively void on its face. Defendant did not

present the trial court with any evidence showing that he was not represented by

counsel when he pled guilty to the New York offenses. He failed to show the

New York convictions were obtained in a constitutionally-impermissible

manner. Therefore, defendant's reliance upon Marshall is misplaced.

We therefore conclude that the record supports the trial judge's

determination that defendant was eligible for an extended term under N.J.S.A.

2C:44-3(a).

B. Defendant's Sentence

Here, the trial judge essentially merged all of the charges with count five

(first-degree kidnapping) for sentencing. The judge then followed the guidelines

for imposing an extended term, as set forth in State v. Pierce, 188 N.J. 155, 169-

71 (2006). The judge reviewed the range of permissible sentences for first-

degree kidnapping, from the shortest ordinary term to the longest extended term.

The judge proceeded to address the aggravating and mitigating factors.

The judge found aggravating factors one (nature and circumstances of the

A-1915-15T2
33
offenses), two (gravity and seriousness of harm inflicted on the victim), three

(risk that defendant will commit another offense), six (extent of defendant's prior

criminal record and the seriousness of the offenses of which he has been

convicted), and nine (need to deter defendant and others from violating the law).

N.J.S.A. 2C:44-1(a)(1), (2), (3), (6), and (9). The judge found no mitigating

factors.

The judge determined that defendant should be sentenced to an extended

term of life imprisonment, with 63.75 years of parole ineligibility, pursuant to

NERA. The judge stated that this sentence was intended to ensure "that this

defendant is never released from custody." The judge commented that

defendant's actions "were beyond depraved and beyond cruel." The judge stated

that defendant had committed "an absolute atrocity on this child."

The judge noted that she watched the video of the child's interview, and

the interview showed that the incident had an emotional effect upon the child,

which would be "very long term." The judge found that defendant "is a terrible

threat to the public" and a "terrible threat to children."

On appeal, defendant argues the judge erred by finding aggravating

factors one and two. He claims that by doing so, the judge engaged in "double

counting." He further argues that the judge failed to consider his mitigating

A-1915-15T2
34
factors, specifically his age, family, or ability to be rehabilitated. He asserts that

the judge erred by using the horrific nature of the offense as a basis to send him

to prison for the remainder of his life.

We review the imposition of a sentence under an abuse of discretion

standard. State v. Jones, 232 N.J. 308, 318 (2018). In doing so, we must

determine whether: "(1) the sentencing guidelines were violated; (2) the findings

of aggravating and mitigating factors were . . . 'based upon competent credible

evidence in the record;' [and] (3) 'the application of the guidelines to the facts'

of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221,

228 (2014) (third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364–

65 (1984)). We will not set aside a sentence unless there is a "clear showing of

abuse of discretion." Ibid. (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).

As noted, defendant argues that the judge engaged in impermissible

"double counting" by finding aggravating factors one and two. "Double

counting" is prohibited because an element of the offense may not be cited as an

aggravating factor in the sentencing process. State v. Fuentes, 217 N.J. 57, 74-

75 (2014).

Here, the judge based her finding of aggravating factor one on: the terror

S.L. experienced when defendant tied the black plastic bag around her head and

A-1915-15T2
35
eyes; and defendant's statement that he would be recording the incident and

posting the video online. Neither circumstance is an element of the offenses of

which defendant was convicted.

In finding aggravating factor two, the judge focused on the terror S.L.

experienced and her post-incident trauma including fear, nightmares, and her

inability to sleep. These effects on S.L. are not elements of the crimes for which

defendant was convicted. Therefore, the judge did not engage in impermissible

"double counting" when finding aggravating factors one and two.

We also reject defendant's contention that the judge failed to consider his

mitigating factors. On appeal, defendant does not identify the specific statutory

mitigating factors that the judge should have found. In any event, the judge

considered the mitigating factors and found that none were applicable.

The judge expressed sympathy for defendant's family, but stated that his

incarceration would not result in an "excessive hardship" to them. She noted

that defendant "is an extreme danger to his children." The record supports the

judge's finding that mitigating factor eleven did not apply. N.J.S.A. 2C:44-

1(b)(11) (defendant's imprisonment will cause excessive hardship to defendant

or his dependents).

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36
 We are therefore convinced the judge followed the sentencing guidelines

for imposing an extended term sentence, as set forth in Pierce, 188 N.J. at 169-

71, and the record supports the judge's findings regarding the aggravating and

mitigating factors. Defendant has not shown that his sentence represents a clear

abuse of discretion.

Affirmed.

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37